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IDEALS OF THE REPUBLIC 



Ideals of the Republic 



By 

JAMES SCHOULE R, LL.D. 

Author of " History of the United States," " Eighty Years of Union," 
"Americans of 1776," etc. 



BOSTON 

LITTLE, BROWN, AND COMPANY 

1908 



u 



OCT -U»*U8 

CeDyr/rfit Entrj) 

OdCXOtXWS 

GLASS CU *X& No, 



$3* 



Copyright, 1908, 
By James Schouler. 



All Rights Reserved 



Published October, 1908 



COLONIAL PRESS 
Electrotyped and Printed by C. H. Simonds & Co. 
Boston, U. S. A. 



PREFACE 

The purpose of the present volume is to trace out 
those fundamental ideas, social and political, to 
which America owes peculiarly her progress and 
prosperity, and to consider the application of those 
ideas to present conditions. The substance of these 
chapters is comprised in occasional lectures given 
by the author in 1906-08 at the Johns Hopkins 
University, to close a connection of seventeen years 
with its Historical Department. 

September, 1908. 



CONTENTS 



CHAPTER I 

THE RIGHTS OF HUMAN NATURE 

Modern diffusion of news and influence — AxeLaIcs's new 
example to Europe — human rights as defined by Decla- 
ration of 1776 — 'origin of such maxims — John Locke 
and our Revolutionary leaders — life, liberty and the pur- 
suit of happiness — property and family rights — man's 
real entrance into political society — rights unalienable 
and rights by sovereign favor I 

CHAPTER II 

TYPES OF EQUALITY 

The equal creation of mankind — equality in unalienable 
rights — natural endowments as affected by environ and 
education — theories of heredity and of natural equality 
compared — American experience as to leaders excep- 
tionally great — 'Social inequalities reconciled — a final 
difficulty as to racial distinctions — historical changes, 
ancient and modern, in leading types — ethnological study 
of the negro — Indians, Africans and Asiatics in our 
American experiment — the racial problems of to-day — 
universal brotherhood in the future, or else the separate 
independence of races 23 

CHAPTER III 

CIVIL RIGHTS 

Relation of individual to organized society — natural rights 
as adapted to citizenship — definitions under our amended 
vii 



viii CONTENTS 



constitution — civil rights and their limits — present fun- 
damental maxims considered — due process of law, just 
compensation, habeas corpus, restricted right of search 
— safeguards in criminal prosecution: jury trial, evi- 
dence, etc. — fair bail, punishments and fines — testimony 
by the accused — present methods in criminal procedure 
imperfect , 47 



CHAPTER IV 

POLITICAL RIGHTS 

Political and civil rights distinguished — allegiance and mod- 
ern self -expatriation — freedom of speech or press — 
freedom to peaceably assemble, petition, etc. — local self- 
government favored — army, navy, militia — treason and 
its punishment — insurrection or civil war — American 
experience in 1866 — participation in government as 
office-holder — tests and requirements — participation by 
voting — modern extension of suffrage, ballot reforms, 
etc. — closer popular government by referendum or ini- 
tiative — strength of an intelligent democracy — religious 
rights 71 



CHAPTER V 

GOVERNMENT BY CONSENT 

This the fundamental basis in American conception — gov- 
ernments many and independent — a public strength and 
security — theory of compact or common consent — good 
of the whole, not of greatest number — government es- 
sential to society, not a punisher only — men born and 
created equal — religious inspiration of our founders — 
other forms of government by consent than republic — 
right to reform or alter institutions — respect for custom 
and existing government — the Dorr rebellion and its 
lesson 



CONTENTS ix 



CHAPTER VI 

WRITTEN CONSTITUTIONS 

American political calendar fixed — March 4th and national 
elections — origin of our written schemes of government 
— colonial charters and the theory of popular compact — 
declaration of rights and a framework — advantage and 
disadvantage of written schemes of government — inter- 
pretation of a written text — methods of amendment — 
rigidity or elasticity in construction — popular self -con- 
straint — public opinion the final arbiter, if court fails 
in duty in 



CHAPTER VII 

A UNION OF STATES 

American and English documents of freedom — ours a com- 
pound scheme: e pluribus unum — colonies developed 
into States — State constitutions popularized; the refer- 
endum, etc. — colonial difference — Union reached with 
difficulty — colonial tendencies to unite — Confederation; 
the more perfect Union — not national to-day, but 
federo-national — constitutional construction in federal 
courts — relative authority — frequent recurrence to fun- 
damental principles 133 



CHAPTER VIII 

THE DISCIPLINE OF LIBERTY 

Natural and social or political freedom — full individual free- 
dom impossible — just and reasonable restraints consid- 
ered — religion, laws and government — Mill's essay on 
liberty — despotic and liberal institutions — individual- 
ism not a true democracy — the Mill theory too broad — 
restraints upon drink, etc. — Bellamy's dream of social- 
ism — all government imports authority — ideals of con- 
formity should be cherished 158 



CONTEXTS 



CHAPTER IX 

THREE DEPARTMENTS OF GOVERNMENT 

Separation of powers, legislative, executive and judiciary — 
the Montesquieu maxim — each department independent 
of the other, but all answerable to the people — legislature 
and a representative system — the Roman senate — local 
self-government in its origin — Parliamentary govern- 
ment compared with our own — how far initiative and 
referendum may apply — the American executive, State 
and federal — rotation and stability — the veto power, 
etc. — our judiciary and its functions — checks and bal- 
ances in the three departments 182 



CHAPTER X 

PARTIES AND PARTY SPOUT 

Two opposing parties not alwaj-s needful — eras of good feel- 
ing — party spirit. English and American — love of coun- 
try paramount — parties should be agencies of the people 
for definite achievement — parry organization in our his- 
tory — " Republican " and "' Democratic " machines — in- 
dependence in politics — power of the press and oratory 
— recent reforms : the Australian ballot, primaries, vot- 
ing machines, etc. — voters above party managers 207 



CHAPTER XI 

SERVANTS OF THE PUBLIC 

Servants or agents at the law — public servants answerable 
to their masters, the people — public employment freely 
open — sinecures, nepotism, rule of rotation — spoils or 
civil sen-ice rnethods — boards and commissions — recent 
municipal experiments in simplified rule — theory of three 
departments here inapplicable — public servants and pub- 
lic-utility concerns — our post office and the railways — 
government regulation rather than ownership 232 



CONTENTS xi 



CHAPTER XII 

THE STRIFE TO SURPASS 

Its relation to social equality — the two correlated forces of 
American life — our social development in such re- 
spects — equalizing tendencies should restrain the strife 
to surpass — modern corporate methods in business — re- 
sponsibility of directors — labor and capital — great con- 
trast of wealth and poverty undesirable — social duties 
of the rich and prosperous — duty of government by in- 
direct checks, etc. — tariff, income and inheritance taxes 

— government prevention better than punishment — pun- 
ishment should be with forbearance — serenity in rule 
better than severity — inordinate greed our radical trouble 

— the promotion of good humor 259 

A New Federal Convention 289 



IDEALS OF THE 
REPUBLIC 

CHAPTER I 

THE RIGHTS OF HUMAN NATURE 

THE round world which we inhabit seems at 
this late day smaller to grasp and compre- 
hend in its surface life than ever before; 
and this, notwithstanding its constant increase in 
numbers, its complexity of peoples and pursuits. 
The rapid and universal diffusion of daily news 
accounts largely for the change wrought in this 
respect. We may not be more patriotic, more 
earnest, stronger in natural vigor and the power to 
construct and originate than were our ancestors of a 
hundred years or more ago, but we see and touch 
things in much broader relations than they ever did 
or dreamed of doing. Take, for instance, the im- 
mense development of steam transportation by land 
and water during the last sixty years, which brings 
countries, once far apart, so close together ; which 
enables us to traverse distant parts of the globe 
once separated, or indeed to go wholly round it. 
Think, too, of the marvellous triumphs achieved in 
the instantaneous transmission of news by the elec- 
tric spark,— with cables and a wire ligature, or by 



2 IDEALS OF THE REPUBLIC 

oral converse through the telephone for long dis- 
tances. All such inventions draw the human race 
into closer intercourse, change the old laws of com- 
merce and trade, and with the aid of our modern 
journalism, enterprising as never before, bring the 
chronicle of distant nations and their rulers into the 
full meridian light of a single day ; exposing the 
public conduct of human affairs, national or inter- 
national, the acts or accidents of life, to the constant 
and contemporaneous inspection and criticism of the 
whole civilized world, as though before some vast 
tribunal constantly in session. 

How differently might our Revolution of 1776 
have worked out, had not these thirteen colonies 
been practically remote from the mother country, 
when they threw off their allegiance and pronounced 
unitedly for freedom. How differently developed 
might have been certain crises in our Civil War 
which depended upon European combinations and 
diplomacy, had not the Atlantic cable, whose success 
we prematurely proclaimed in 1858, lain a dead mass 
of wire in the ocean's bed, until renewed after the 
Union had been re-established. 

Out of this modern approach to a combined uni- 
versal knowledge and forcefulness come a closer 
conformity or rivalry in government methods, a 
convulsion of social elements favorable to democracy, 
and a sort of comprehensive review, from day to day, 
of the pageant of passing events the world over, 
with the consequent force applied of an interna- 
tional public opinion daily formulated. " The Parlia- 
ment of man, the federation of the world," may yet 
be realized on this globe by another century. 

Yet, scarcely a century ago, thrones throughout 



RIGHTS OF HUMAN NATURE 3 

Europe were overturned, blood was poured out 
profusely, revenues were forcefully exacted and 
prodigally spent. Such are the direful perils with 
which one new century or another opens. And as 
Lord Byron, early in the nineteenth century, hailed 
this new republic across the seas where freedom's 
sun then shone serenely, while on his own conti- 
nent " the name of commonwealth was past and 
gone," so did the American people, in those years 
of their youthful strength, confidently hold in sight 
of that older continent the torch of their own 
example and maintain the faith of those precious 
institutions which the fathers had struggled to 
establish. " We stand the latest and if we fall 
probably the last of mankind," was the adjuration 
of one of our own orators, which sank into heedful 
minds. 

Here, then, developed thus early, on virgin soil, 
a United States of America, swellingly proud of 
the stars and stripes and other emblems of a sov- 
ereignty ; encouraging by their own high example the 
weaker peoples of Spanish and Indian origin who 
sought a similar system of self-government free from 
all European dictation ; we shed the light of rational 
liberty as a beacon to the oppressed of mankind 
the world over. And the cause of America's influ- 
ence already, as a world's power, was the knowledge 
she diffused on problems of self-sovereignty, and 
the new faith she inspired through institutions 
deeply grounded upon the universal rights of human 
nature. 

Let us, in these chapters, begin by discussing 
at length those fundamental truths announced for 



4 IDEALS OF THE REPUBLIC 

ourselves and for all nations or commonwealths 
organized upon a popular plan after our own example, 
in the noble phrasing of the Declaration of 1776: 
11 That all men are created equal, that they are 
endowed by their Creator with certain unalienable 
rights, that among these are Life, Liberty and the 
pursuit of Happiness; that to secure these rights 
government is instituted among men." 

These truths were announced as self-evident, and 
were held to be such by all who signed the instru- 
ment at Philadelphia and made themselves responsible 
for the ordeal of bloody resistance to Great Britain 
at the peril of lives and fortunes. Furthermore, they 
were set forth by our Continental Congress solemnly 
and devoutly. Like the agreement of the people 
of England on parental soil, in an earlier century, 
when they rebelled against their King, Americans 
of 1776 claimed such individual rights as the endow- 
ment of their Creator. It was not that men are 
simply born equal in respect of such rights — per- 
chance under some blind and fatalistic scheme of 
natural necessity — but that they are created so, and 
that the intelligent source of our dignified state of 
existence, whence each derived so noble a birth- 
right with a portion of divine intelligence, is the 
Almighty Himself. America holds, and the people 
of all civilized nations in all ages should hold, as 
essential to any just progression of the human race, 
a rational belief of some kind in man's intelligent 
subordination to God's law, in our eternal deriva- 
tion for an eternal life, in each one's personal respon- 
sibility for his own career in this life, with prepa- 
ration for an immortal existence hereafter. Men 
of learning grow material on this point in their 



RIGHTS OF HUMAN NATURE 5 

ardor for material facts ; yet materialism causes the 
one fascinating secret of nature, the one problem 
that interests all mankind, to elude and escape them. 
M Never," observes Canon Scott-Holland, " was 
the contrast more vivid or more crushing than now, 
between the astounding practical efficiency of our 
scientific handling of earth's material treasures 
and the futility of our search for the hidden mys- 
tery." 

Truths " self-evident," however, must long have 
been recognized by a people before they can be 
rationally promulgated in such a form or accepted 
as an inducement to cooperative action. The Vir- 
ginian who composed this Declaration, did not 
claim to have originated such a philosophy; nor 
did Franklin or John Adams, his elders of the sub- 
committee who fully approved what he had drafted ; 
nor did those Continental delegates who voted and 
signed, with but few verbal changes, the solemn 
instrument. When challenged in later life as to his 
authorship, Jefferson disclaimed all pretence of in- 
venting what he had here formulated, but said that he 
had expressed himself simply as the thoughts shaped 
themselves out in his own mind, turning neither to 
book nor pamphlet while he wrote the paragraphs. 
This assertion we may well believe. John Adams, 
in a letter of 1822, which was meant to serve 
history, gave due credit to the composition as it 
came from one whom his colleagues trusted, report- 
ing hastily the instrument to Congress in Jefferson's 
own handwriting. But with somewhat captious 
jealousy he adds : " there is not an idea in it but what 
had been hackneyed in Congress for two years be- 
fore." And in proof of this he refers to a Declaration 



6 IDEALS OF THE REPUBLIC 

contained in the Journals of Congress of 1774, — 
as also to a Boston pamphlet voted and printed by 
the town of Boston before the first Congress met 
at all, which was composed, he says, by James 
Otis and pruned and polished by Samuel Adams. 1 

" Hackneyed " in ideas as to the whole instru- 
ment is strong language to use. Xo document which 
for the first time announces a solemn Revolutionary 
purpose can fairly be deemed a document of hack- 
neyed ideas; its very essence is that of a new 
determination. For not until leaders and a con- 
stituency are fully ripe for throwing off their accus- 
tomed allegiance as subjects do they adopt the tone 
of defiance in place of protest and petition; still 
less do they announce the intention to plant them- 
selves upon the assertion of natural and individual 
rights as a basis for new institutions to be founded 
in and through their own consent. 

The address made (October 26th) by the Congress 
of 1774 is before me, with its "humble petition," 
"earnestly beseeching of his Majesty a gracious 
answer," and wishing him " a long and glorious 
reign." Wrongs suffered are here set forth, to be 
sure, as a catalogue of grievances; but they are 
stated astutely, as rather the infliction of legislators 
in Parliament, of the governors and other agents 
sent hither by a sovereign, than of the sovereign 
himself. For practical redress, the effort, first of 
all, had been to separate the King from bad coun- 
sellors and trust to his personal intervention at 
home to correct the grievances of these distant 
subjects. So Congress, in 1774, on the common be- 
half, vouched for the people as the King's " loyal 

x 2 John Adams's Works, 512. 



RIGHTS OF HUMAN NATURE 7 

subjects, who fly to the foot of his throne and 
implore his clemency for protection." " We ask but 
for peace, liberty and safety; we wish not a diminu- 
tion of the prerogative, nor do we solicit any new 
right in our favor." " We yield to no British sub- 
jects in affectionate attachment to your Majesty's 
person, family or government." And proceeding in 
such a strain Congress defies the most subtle and 
inveterate enemies of these colonies to trace the 
unhappy differences in America to an earlier period 
or to any other causes than those herein stated. 
All this language of dutiful supplication suited 
the prevailing temper," more especially in those middle 
and southern colonies where oppression had not been 
great. In short, the Confederate Congress of 1774 
spoke, while war clouds were gathering, the senti- 
ment of that earlier year, just as our national Con- 
gress in 1860-61 made utterance on the slavery 
question; each conforming to a reluctant public 
sentiment at a time when relief was sought and 
hoped for without resort to dire extremities. But 
the Declaration of Grievances, to which John Adams 
more particularly refers, claims boldly 1 that these 
colonies " are entitled to life, liberty and property, and 
they have never ceded to any sovereign power 
whatever a right to dispose of either without their 
consent." 

A sterner document, no doubt, was that to which 
John Adams referred as emanating from the town 
meeting of Boston, still earlier. In the press of that 
town was advertised, during 1773, " The American 
alarm, or the Bostonian plea for the rights and 

1 By way of amendment proposed by John Sullivan of New Hamp- 
shire to the original draft. See 2 John Adams's Works, appx. 535. 



8 IDEALS OF THE REPUBLIC 

liberties of the people." 1 All this, however, we may 
surmise, in default of clearer testimony, was the 
language of rebellious opposition, not of pronounced 
revolution; and Massachusetts in such utterances 
was quite in advance of the other colonies. 

But Boston had, still earlier, disseminated her 
views of the coming crisis by local correspondence, 
and indeed had published them to the world, by 
way of self-defence against the crown. In fact, 
an earlier Boston pamphlet, which records the pro- 
ceedings of a town meeting held in November, 1772, 
seems really to have contained the germ of Jeffer- 
son's later statement of the rights of mankind, such 
as I am considering; and most likely it is that 
pamphlet to which John Adams's letter refers in 
connection with James Otis's composition. For here 
the inhabitants in their " vindication to the world," 
published a committee report which set forth (1) the 
rights of these colonists as men, as Christians and as 
subjects, and (2) the infringement and violation of 
those rights from which they suffered. To this 
enumeration of natural rights I shall refer pres- 
ently. 2 

Once more, some have claimed that our Declara- 
tion of 1776 bears a strong resemblance to that of 
the United Netherlands in 1581. True, the action 
of our thirteen colonies parallels in history that of 
Holland nearly two centuries earlier ; but no careful 

1 The Massachusetts Gazette reports this town meeting of 1773 as 
issuing " an earnest and inflammatory address, indignant over the 
wrongs from which that province suffered," which recited at length the 
various encroachments made upon the inherent privileges of Massa- 
chusetts freemen by the parent government, and declared indignantly 
that these rights they would not subject to " any usurper under 
heaven." I cannot find an authentic copy of this address. 

3 See copy in Boston Athenaeum which I have examined. 



RIGHTS OF HUMAN NATURE 9 

reader of Motley's ' ' Dutch Republic ' ' would undertake 
to pronounce the two instruments of independence 
at all alike in expression. There is not the slightest 
likelihood that the earlier one in its strange tongue 
served in any sense as a model for the later. Motley 
himself, who taught his fellow-countrymen to 
:ompare the two revolutions by his scholarly 
research among the records of the Netherlands, 
bells us positively in his narrative that the old 
Dutch Declaration, in respect of primal truths, 
put forth simply the idea that all government should 
De conducted for the benefit of the governed, and he 
idds that its framers were content with their own 
listoric and monarchical institutions as then existing, 
rhis Dutch instrument argued approvingly the divine 
ight of kings, even while justifying the people 
n the dethronement of their monarch. " Like the 
ictors in our own great national drama, before the 
crisis came, they were struggling to sustain, not to 
)verthrow ; unlike them, they claimed no theoretical 
reedom for humanity, promulgated no doctrine of 
popular sovereignty." x 



But to inquire more closely how those first truths 
:ame to be proclaimed so confidently in our great 
locument of 1776 and upon what philosophy of 
;ivil government this American Union of ours came 
)ermanently and historically into being. The 
ixordium, with its unique and original expression 
)f basic human rights, has, most of all, immortalized 
;his instrument and made it educational to posterity. 
Nhat changes have already been wrought in human 

1 3 Motley's Dutch Republic, 51 1 (Part v, c 4). 



10 IDEALS OF THE REPUBLIC 

government, through the steadily pervading force 
of those terse pellucid phrases, like dropping water! 
Our states have, one by one, for more than a century, 
incorporated those same formulas of equal rights and 
government by consent into their separate constitu- 
tions; emulous and struggling republics in the two 
Americas, and in Switzerland and elsewhere, and 
possibly France besides, have copied such phrases, 
almost word for word, and modelled their own gov- 
ernments upon the same theory; and withal, by the 
logic of a single strong sentence, we ourselves, as a 
people, were led to strike the manacles from a 
race once held subject sectionally because of com- 
plexion. 

To understand the real origin of those pregnant 
truths, we recall, at the outset, that our Revolution- 
ary fathers were not only British subjects in alle- 
giance, but, for the most part, of British lineage, 
speakers of the English language, inheritors of the 
common law. Other elements of our population, like 
the Dutch, Swedes, Finns or French Huguenots, 
themselves identified rather with the European 
mainland, were comparatively scarce among settlers 
of that century. Anglo-Saxon or Anglo-Norman 
by an immense preponderance, our immigrants 
cherished, with their mother tongue, all those rights 
and privileges which their sturdy progenitors had 
wrested from British sovereigns: Magna Charta, 
trial by jury, habeas corpus, the right of representa- 
tion and the rest. Such phrases of the common law 
were familiar to them as " life, liberty, property," 
or in the English wife's version, " life, liberty, 
dower." Historically, moreover, our colonial migra- 
tion was connected with the English civil war, so 



RIGHTS OF HUMAN NATURE 11 

that the ideals of Hampden, Vane, Sidney and the 
rest, which the later Stuarts frustrated, grew apace 
on this side of the Atlantic, while they faded out 
seemingly at home. Even on parental soil, however, 
reaction against royal prerogative went far enough 
to bring to the British people the Bill of Rights of 
1689; and that kingly concession, secured through 
Parliament when resettling the crown, proved to 
our colonists here an important bulwark. 

But it was John Locke, the English author and 
scholar, whose popular essay on government chiefly 
and most closely embodied and transmitted to our 
Revolutionary sires the fundamental ideas of civil 
liberty which their own progenitors had evolved in 
that earlier protracted struggle on parent soil. 
Not a practical framer of institutions, so much 
as a philosopher and guide in abstract principles — 
and this the failure of his colonial plan for South 
Carolina shows clearly — he upheld the doctrine of 
popular rights, with strong insistence, against all 
arbitrary rule or oppression, and in that respect 
our American settlers far and wide became his 
earnest disciples. His life spanned the vicissitudes 
of that civil strife in England from which a con- 
tinental sojourn had detached him largely, and he 
died in 1704, a great disseminator for posterity. 

Locke's claims as a philosopher in other fields 
of speculative thought we need not consider; but 
what here interests is the political school of ideas 
to which he gave such strong direction; though 
himself indebted much, as he acknowledged, to 
Hooker, that judicious English divine, whose first 
principles concerning church polity, he himself 
developed rather for temporal rule. John Locke, 



12 IDEALS OF THE REPUBLIC 

then, more than any other man, cast the mould of 
this American Republic and drew up as architect 
the plans of our political fabric. " The natural 
liberty of man," he contends in his treatise on gov- 
ernment, " is to be free from any superior power on 
earth, and not to be under the will or legislative 
authority of man, but to have only nature for his 
rule. The liberty of man in society is to be under 
no other legislative power but that established by 
consent in the commonwealth; nor under the do- 
minion of any will, or restraint of any law, but what 
that legislative power shall enact, according to the 
trust put in it." When Locke wrote, the modern 
distinction between executive, legislative and judi- 
ciary functions in a state was not clearly conceived ; 
so that where he thus speaks of legislature or legis- 
lative power, he means civil sovereignty in general, 
however framed or exercised. 

11 Life, liberty, estate " — " life, liberty, property " 
— these were inherent rights linked together in 
speech, and familiar to the free-born Englishman as 
bosom truths, long before Locke's essay was written. 
It is not property alone, nor life and liberty alone, 
for whose protection to the individual government 
is instituted. These three stand chief among the 
inherent rights of man, but are not the only ones; 
and Locke himself mentions, as still another, " the 
liberty of innocent delights," which doubtless means 
much the same as what Jefferson in our Declaration 
styled "the pursuit of happiness" — either term 
being, perhaps, capable of expression in the sense 
of working out unmolested as of natural right the 
fulfilment of one's earthly vocation. 

In the pursuit of natural and unalienable rights, 



RIGHTS OF HUMAN NATURE 13 

as thus set forth, the first thing we encounter in 
human intercourse is the collision of our own individ- 
ual rights or desires with those of others ; whereupon 
force asserts the mastery in a state of nature, failing 
that persuasion which must rudely enough have 
been applied in primitive times; and hence the 
weaker rival goes to the wall, deprived and dis- 
possessed. It is chiefly to apply the paramount rule 
of impartial justice with its remedies or redress, 
in all such collisions, all such infringement upon one's 
natural rights, that government with its organized 
and irresistible force, capable of supremacy, is in- 
stituted by the people. " All men by nature are 
equals," observes Locke; 1 and again, "men being 
by nature all free, equal and independent, no one 
can be put [rightfully] out of his estate and sub- 
jected to the political power of another without his 
own consent." a But, as he also concedes, God 
makes man a social animal and leads him into society. 
And (we may add) in the social state these funda- 
mental rights of nature require for their due appli- 
cation that no one, in the enjoyment of his own life, 
liberty, property or the pursuit of happiness, shall 
molest the corresponding rights of others. Only an 
organized government, however, can work out such 
a principle intelligently or efficiently. 



Such, then, was the exposition of natural rights 
and the origin of government with which our fore- 
fathers in these thirteen colonies had become fairly 
familiar, long before they consented to force a 
rupture with George III and their mother country. 

1 § 54. s § 95- 



14 IDEALS OF THE REPUBLIC 

Here upon a new soil, thinly populated and in its 
primitive wildness, they seemed face to face with 
nature herself, and capable of working out, in their 
own collective experience, the primary problems 
of human society, such as Locke had expatiated 
upon in his essay. And as time went on and our 
several colonies grew stronger, the innate love of 
personal independence and of equality in social 
condition asserted itself more and more among 
our inhabitants, while the desire of a separate public 
existence increased as royal and parliamentary 
exactions grew burdensome. Nor was it alone the 
rights of a loyal British subject that the colonist 
was led here to consider, but whether a life-long 
and submissive allegiance to Great Britain rested 
upon him at all as an inherent duty, because of mere 
birth in the King's dominions; and whether the 
peculiar conditions which developed this new hemi- 
sphere with Europe so far away might not justify 
him in asserting independence and home rule at a 
last extremity. All this brought our individual 
colonist to a study of first principles and the rights 
of nature, and those principles had become so rooted 
in men's minds by 1776 that Jefferson could formu- 
late them in his draft without turning to any book 
for guidance. 

In toasts, in mottoes for public occasions, in epi- 
grams of the local press, and in resolutions adopted 
by town or county political meetings, sententious 
expressions such as I have quoted were used for 
popular effect in those pregnant years. Beccaria, 
an Italian scholar and philanthropist, published an 
essay on crimes and punishments which circulated 
in an English translation; and one passage therein 



RIGHTS OF HUMAN NATURE 15 

which spoke of " supporting the rights of mankind " 
John Adams used with effect in 1770, in the Massa- 
chusetts colony, when defending some patriot 
soldiers. Still earlier had James Otis by 1763 de- 
nounced the transgressions of British rulers as 
against the province law of Massachusetts and " the 
rights of mankind." When the Stamp Act was 
promulgated, our popular protest was " liberty, 
property and no stamps." John Dickinson, then 
of Pennsylvania, whose " Farmer's Letters " of 
1767 made so profound an impression through these 
colonies that Bostonians in Faneuil Hall voted 
him thanks for his vindication of American rights, 
laid down as a postulate that " government is in- 
stituted for the benefit of those governed," and 
that " the first principles of government are to be 
looked for in human nature." And as " Farmer " 
still, in a somewhat later essay, he claimed " liberty, 
life and property," as rights which men ought to 
possess, but could not practically, if others had a 
right of taking them away at pleasure. 

Finally Paine's " Common Sense," — that last 
and anonymous appeal through the press, whose 
calm and cogent reasoning brought, most of all, our 
people and Congress in 1776 to the irrevocable 
decision, — announced the author as an open and 
resolute friend and a virtuous supporter of " the 
rights of mankind " and of " the free and inde- 
pendent States of America." And the title-page 
of his pamphlet quoted with pertinence a couplet 
from Thomson, the English poet: 



■ Man knows no master save creating Heaven, 
Or those whom choice and common good ordain." 



16 IDEALS OF THE REPUBLIC 

But to come more closely to the pronouncements 
of the Declaration, let us examine those votes and 
proceedings of the inhabitants of Boston in Novem- 
ber, 1772, to which I have alluded. 1 The report of 
a committee, made and adopted at that meeting, 
enumerates the rights of the people as men, as 
Christians and as subjects. " Among the natural 
rights of the colonists," it asserts, " are these: 
(1) right to life, (2) to liberty, (3) to property; to- 
gether with the right to defend them in the best 
manner they can. These are evident branches of, 
rather than deductions from, the duty of self-preser- 
vation, commonly called the first law of nature." 
" All men have 'a right to remain in a state of nature 
as long as they please; and in a case of intolerable 
oppression, civil or religious, to leave the society 
they belong to and enter into another." " When 
men enter into society it is by voluntary consent; 
and they have a right to demand and insist upon 
the performance of such conditions and previous 
limitations as form an equitable original compact." 
11 Every natural right not expressly given up, or 
from the nature of a social compact necessarily 
ceded, remains." In such a strain discoursed this 
Boston pamphlet; and Locke's essay was fre- 
quently cited to support its postulates. 

We may well suppose that other abstract state- 
ments of man's unalienable rights and of the true 
origin of government were framed and set forth 
in American towns and colonies during these forma- 
tive years, notwithstanding the fact that Jefferson's 
compact expression of such ideas, which has since 
become the standard, originated with his pen. 

1 Ante p. 8. 



RIGHTS OF HUMAN NATURE 17 

There were few colonial newspapers at that era and 
none of daily publication; nor did the press report 
public proceedings with anything like our modern 
fulness of detail. The pre-Revolutionary archives 
of our town and county meetings have not been 
well preserved for posterity. Probably, if we could 
now bring to light the resolves and addresses which 
originated in local public gatherings of those years — 
1770 to 1776 — we would find such fundamental 
truths again and again asserted by patriots. Here, 
for example, is one little town of the same Massa- 
chusetts, whose record of 1773 happens to have 
been preserved, showing her rustic citizens making 
public claim of such inherent rights, in language 
borrowed plainly from that of the Boston resolu- 
tions. That town in Worcester County — Mendon — 
exists to-day, but only as a dwindling hamlet among 
central highlands, with less than a thousand inhabit- 
ants, whose name is chiefly preserved to us by its 
early association with a melodious psalm-tune long 
popular in congregational worship. 1 



It is worth observing that in our Declaration of 
Independence the rights which Jefferson instanced 
as among those " inherent and unalienable " differ 
somewhat from the usual phrase which I have dwelt 

1 If the so-called " Mecklenburg Declaration " of 1775, purporting (as 
re-written from memory long years after) to antedate some of the ex- 
pressions used in our Declaration of 1776, had claimed a prior assertion 
of " the inherent rights of man," instead of identical turns of phrase to- 
ward the close of the instrument, the authenticity of that production 
might be less questionable. Our latest writers on that topic fairly 
establish that a meeting was held in 1775 m Mecklenburg County, 
North Carolina, at which stirring resolves were adopted; yet the 
language of those resolves remains in impenetrable doubt. 



18 IDEALS OF THE REPUBLIC 

upon, since the right of property is not mentioned 
at all. His omission here may have been casual, or 
due to a desire of original composition; or it may 
have been his purpose to bring out in stronger 
relief, at such a crisis, those dearer rights to every 
one which Congress now placed at jeopardy. But, 
doubtless, the right of property was meant to be 
upheld. For the sacredness of individual ownership 
in things real or personal was deeply ingrained in 
our Anglo-Saxon nature. " The reason why men 
enter society," says Locke, with a curious corre- 
sponding omission, " is the preservation of their 
property." 

An impressive speech, made as late as 1820 by 
Judge Story in the Massachusetts Convention of 
that year, brings into clear relief the idea of property 
rights, such as our Revolutionary sires had always 
inculcated; and its fine imagery should deepen the 
impression made upon such of us as live more or less 
of the year by the ocean. V Those who are wealthy 
to-day pass to the tomb, and their children divide 
their estates. . . . Property is continually changing 
like the waves of the sea. One wave rises and is soon 
swallowed up in the vast abyss and seen no more. 
Another rises, and having reached its destined limits 
falls gently away, and is succeeded by yet another, 
which, in its turn, breaks and dies gently on the 
shore. The richest man among us may be brought 
down to the humblest level; and the child with 
scarcely clothes enough to cover his nakedness 
may rise to the highest office in our government." 
"It is a mistaken theory," proceeds this orator, 
reverting to his main argument, " that government 
is founded for one object only " — that of personal 



RIGHTS OF HUMAN NATURE 19 

rights. It is " organized for the protection of 
life, liberty and property and all the comforts of 
society — to enable us to indulge in our domestic 
affections, and quietly to enjoy our homes and our 
firesides." 

In one respect, and only one, as it seems to me, 
is this whole theory of the natural rights of men, who 
institute government by intelligent compact, a 
defective one, and the passage I have quoted sug- 
gests it. It does not take into account the sexual 
origin of the human race nor the primitive law of 
family. Locke's philosophy would seem to imply 
that mankind consisted of males alone ; and of males, 
moreover, naturally capable of comprehending and 
providing for their own individual rights and wants 
the moment they enter society. But the facts of 
human existence are quite different. As with the 
brute type of animals, male and female of human- 
kind are created together and for one another ; both 
sexes seek society not for general intercourse alone, 
but from the family and propagating instinct, the 
desire of a pair to live together and rear a family — 
which is the strongest, the most persistent, and the 
most endearing of all passions, all affections, planted 
in the human race. And in the parental relation 
itself we see the precursor, the kernel and epitome 
of all authority upon earth. Except for God's 
first created pair or pairs, every one who is born at 
all, male or female, lies for awhile helpless in the 
cradle, unconscious of natural rights, unable to 
preserve even life, the most essential of them all. 
To parent or parents primarily one looks for early 
protection, maintenance and education. The child 
needs a careful supervision and guardianship during 



20 IDEALS OF THE REPUBLIC 

the growing period of infancy; and in return he 
renders what juvenile service he may and learns 
subjection and discipline, first of all, in a stage of 
life preliminary to asserting intelligently or making 
binding compacts over his own individual birthright. 
There is, therefore, in effect, a human government 
for us all, when we enter upon human existence, and 
that in its inception instituted after the pattern of 
divine sovereignty over the whole human race. It 
requires at the outset perfect submission and obedi- 
ence to some other and stronger will, whose depth 
and purpose one may not fathom, but in whose tender 
compassion he seeks wholly to confide. The family 
relation, when offspring are prolific, enlarges into 
that of tribe or patriarchal clan; and it is thus 
combined, — and with family intent and reserve — 
that men and women first of all seek society, uniting 
under a government, and not as individuals equally 
competent. And the strongest force in human 
society, whether to seek civil government or to resist 
its undue external pressure, is found accordingly in 
that unit which we denominate family. Man comes 
into the compact of civil government, not alone as 
a mere individual, but as head of a family, as pa- 
triarch and representative of his own household, and 
natural rights in that relation he aims thereby to 
secure with other rights. 



Truths which had become truisms by long accept- 
ance are justly to be deemed and defended as truths, 
once more, whenever a new and arrogant generation, 
through skeptical perverseness or some overpowering 
wish to change the custom, calls them into question. 



RIGHTS OF HUMAN NATURE 21 

But the profound utterances of our Declaration 
are no mere ' 'glittering generalities," as a brilliant 
rhetorician once styled them in disparagement. 
They serve us as a perpetual bill of rights. " The 
doctrine that men are endowed by their Creator 
with unalienable rights," says an eloquent orator of 
to-day, " rights which the government did not give 
and cannot take away — and the doctrine that rights 
are gracious grants from a sovereign government to 
a subject people — the difference between these two 
doctrines is so great that an ocean can roll between 
them. In fact, an ocean does roll between them, for 
the former is the American doctrine and the latter 
the doctrine of European countries." 

Whatever, then, may be misrule, the occasional 
lapses from right public conduct and direction, who 
of us that has once lived under a government in 
which we each had a voice and a potential influence 
to make things better and to apply a co-operating 
corrective, — who would willingly exchange such a 
government for that under an autocrat, however 
benevolent, whose source of authority lies wholly 
independent of ourselves? Who of us would will- 
ingly forfeit his personal liberty as the price of dis- 
pensing with that eternal vigilance which all liberty 
requires? Who of us does not feel that, despite all 
individual differences in worldly advantage or 
opportunities, — all abuses uncorrected and yet 
capable of correction, — a spirit of comradeship 
and sympathetic brotherhood unites us in pursuing 
the ideals of civil life? As our Continental Congress 
stated it after the war for independence had been 
successfully waged, so should we wish to say when- 
ever some great public end has been achieved by 



22 IDEALS OF THE REPUBLIC 

an honest and united effort of the citizens: " Let 
it be remembered that it has ever been the pride 
and boast of America that the rights for which she 
contended were the rights of human nature." 



CHAPTER II 

TYPES OF EQUALITY 

THE initial phrase in the second paragraph 
of our Declaration imports the natural 
equality of all men in their creation. That 
phrase in its literal expression has proved a stum- 
bling block to superficial readers. But it need not 
so greatly perplex us if we but consider the just 
interpretation of such language. 

That " all men are created equal," is, in the first 
place, here collocated with the statement of un- 
alienable rights with which our Creator has endowed 
all mankind. Herein, most emphatically, they are 
created equal. In life, in liberty, in the pursuit of 
happiness and the similar essentials of a rational 
existence, God regards all mortals alike in their 
rightful opportunities for a career, whether as to- 
wards himself or towards each other. The whole 
irift of Bible inspiration is to establish that the 
Supreme Being is no respecter of persons, — that 
we shall all be held accountable hereafter for doing 
here to our fellow-men as we would be done by, and 
for loving and respecting our neighbors as our- 
selves. Even in the manifold relations of a prac- 
tically organized society, ranks and visible advan- 
tages in life are or ought to be adventitious and 
:hangeable ; and nothing in the primary sense holds 
more universally true of all mankind than the in- 



24 IDEALS OF THE REPUBLIC 

herent right of each individual to work out, inde- 
pendently of coercion or constraint, his own respon- 
sible course in life, whether in one relative sphere 
of experience or another. " The rank is but the 
guinea's stamp," says the poet. Under the benign 
influence of our modern jurisprudence, the courts 
are open for the enforcement of rights and the 
redress of wrongs, to all citizens or subjects alike, 
regardless of station or influence. 

A man may not, as a matter of fact, be my equal, 
or I may not be his equal, in moral, intellectual or 
physical powers, nor in those advantages for worldly 
fame and influence which education, inherited wealth 
or pedigree may afford, at the outset of responsible 
activity in life. Children born into the world are not 
born equally capable mentally nor equally healthy. 
The proposition that all men are equal, as Locke 
observes, does not mean all sorts of equality; for 
age or virtue may give precedence, and excellence 
of parts or merits may place some one above the 
common level ; birth may subject some and alliance 
or benefit others, to pay an observance where nature 
or gratitude may have made it due. Yet all this 
consists, he says, with the equality all are in with 
respect of jurisdiction or dominion one over another ; 
since every man has " an equal right to his natural 
freedom without being subjected to the will or 
authority of any other man." 1 And so, too, in 1809, 
when Jefferson, the framer of our familiar phrase, 
received from a French author a volume upon the 
" Literature of the Negroes," which asserted a 
higher mental capacity in that race than society 
credited, he wrote thus : " Be assured that no person 

1 Locke §54. 



TYPES OF EQUALITY 25 

living wishes more sincerely than I do, to see a com- 
plete refutation of the doubts I have myself ex- 
pressed on the grade of understanding allotted to 
them by nature, and to find that in this respect they 
are on a par with ourselves. * * * But whatever be 
their degree of talent it is no measure of their rights. 
Because Sir Isaac Newton was superior to others in 
understanding, he was not therefore lord of the 
person or property of others." 1 



But we may go even farther in our argument and 
contend, as a matter of wholesome theory, at least, 
for encouragement, that the natural endowments of 
mankind in any race are very much alike, given the 
same means and opportunities, the same training, 
the same environment, from the cradle up. And a 
dogma like this may serve to bring the standard for 
human progression more nearly to its true place, 
by upholding the dignity and worth of all human 
endeavor for each and every individual who con- 
tributes to our world's development. Such a stand- 
ard we should oppose to those degrading notions 
which long prevailed under an ancient civilization, 
whereby birthright in its merest accidents was to de- 
termine fixedly the whole status of life itself, whereby 
millions of human beings lived out their span only 
to subserve the lust, the caprice, the ambition, the 
cruelty or the rapacity, of absolute rulers or nobles 
born with the external means of commanding. It 
is true that in natural gifts of intellect or bodily 
strength all are not literally alike — to some are 
given five talents, to others two, and to others only 

1 5 Jeff. Works, 429. 



26 IDEALS OF THE REPUBLIC 

one. The doubling of such endowment does not pro- 
duce equal aggregate results. Yet the good use re- 
quired from each possessor follows the same rule, 
and from mankind generally is expected the same 
proportionate gain, each according to his birthright 
or the measure of gift and opportunity afforded him ; 
nor ought even the humblest possessor to despise 
his own talent or endowment for its inferiority, nor 
to bury it in slothful concealment and disuse where 
it can earn no increment. 

And while alluding to this familiar parable of the 
New Testament, let me remark that I for my part 
have always sympathized most strongly with those 
who, endowed in life not much more than the humble 
average of men, have yet sought steadily to improve 
such gifts as the Almighty has seen fit to bestow 
upon them, and have made the best use of their 
modest means and occasions for the welfare of 
others and their own self-improvement. Such 
efforts have interested me and commanded my re- 
spect even more than those of the brilliant few, 
talented beyond all others, widely worshipped, 
proudly self-conscious and supremely successful. 
And hence I have sometimes wished that the lord 
of the parable who called his three stewards to ac- 
count, upon returning from a journey, had bestowed 
upon him of the two talents, instead of his more 
favored associate, that one talent of which the 
wicked and slothful servant was deprived ; so as to 
make his total as great, at least, as that with which 
the most gifted of the three started as steward. 
For, as Senator Hoar once wisely observed, much of 
the good work in this world has been that of com- 
monplace persons who have done their best. 



, TYPES OF EQUALITY 27 

Some philosophical writers have made much of 
heredity as a prerequisite of noble living, instancing, 
to support their contention, that pedigree we so 
highly value in breeding domestic animals. But 
such comparisons have their obvious bounds. It 
is mostly for frisky, vivacious, emulous traits, such 
as bear upon physical energy and excellence for 
bodily service, that you sire your race-horse with 
selection. But when it comes to the essentials of a 
noble human existence, range of intellect, will power 
and the development of high moral virtues in the 
individual tell upon life's competition and achieve- 
ment more than any mere bodily superiority; and 
here the effect of education and environment upon 
man or woman becomes an element immeasurably 
greater towards the attainment of perfection than 
that of mere heredity. Heredity counts still, to be 
sure, upon human character, and sometimes counts 
greatly ; but who that reads the record of our Ameri- 
can people, after the lapse of less than a century 
and a half under our broad and peculiar experience 
of government, will maintain that a cycle of caste 
counts more in a country for human development 
or capacity? The sway of some wise and benevolent 
despot, over a people well ordered and submissive, 
may afford a grand spectacle of imperial strength; 
but immeasurably stronger stands the government 
which unites the hearts of an intelligent and moral 
people whose social conditions are in natural motion, 
so that each individual among them is encouraged 
to better his condition; and where the chief ruler 
is one of their own free selection from among them- 
selves. 



28 IDEALS OF THE REPUBLIC 

How far, then, heredity of birth and blood alone 
may assure among mankind a superior quality of 
physical and mental vigor in combination, and of 
what we term high spirit or character, — how far it 
feeds and promotes the fire of divine energy in human 
breasts, — science has not determined, nor can it 
readily. In the great progenitor of a new and illus- 
trious family we have such strong and leading 
qualities in marked abundance, and paternal and 
maternal traits are found combined in each individ- 
ual of one's immediate family offspring. But 
whether it be the silent and corpuscular transmis- 
sion of such traits in the blood that counts most 
essentially, and not rather the transmission of 
parental example — of an influence and education, 
through father or mother — in impelling the young 
child forward and inspiring a family emulation, is 
yet to be clearly established upon accessible facts. 
Japan is not the only country that feels the force of 
ancestor- worship. We see descendants, or those pur- 
porting to be such, proud of their illustrious lineage 
and pedigree, striving to live up to the cherished 
ideals of their forbears, and yet, while doing so, 
ignoring often immediate parents or grandparents, 
whose individual careers perchance made blots in 
the escutcheon, but whose blood, nevertheless, 
flows more intimately in their veins. 

Such reverence for heraldry and a family tree, 
though doubtless of great exemplary influence upon 
one's own career, is not so largely innate, then, but 
external. The force is analogous to that of tra- 
dition, — of high examples generally, such as 
those of friends, patrons, educators, benefactors, all 
possibly of different blood. How happily placed 



TYPES OF EQUALITY 29 

by birth and early surroundings is the child of 
him who has achieved great wealth or distinction, 
so far as opportunity may push one forward ; yet 
a refined mediocrity and uselessness in life may 
prove the real result, in such offspring — " great 
respectability but small account; " while too often, 
indolence, indulgence, the yielding to temptation, 
may sink or impair the stock, since position or 
wealth itself brings drawbacks. The " blood that 
tells," in the world's estimation, tells mainly for 
that generation which startled contemporaries by 
its own spontaneous energy and its recognized even 
though rude capacity to originate and rule. Great 
names become forgotten in the offspring that in- 
herit them. Meanwhile, some upstart of low or 
obscure pedigree shows the rare gift of leadership 
in politics, business, science, literature or the arts, 
and he in his turn wins an illustrious fame which he 
would fain transmit to his children but cannot. 
America might have borrowed from the old world 
a Washington or a Roosevelt; but a Lincoln, a 
Grant or a Cleveland could hardly, on European 
soil, have guided a nation's destinies. What chil- 
dren or grandchildren in our land have duplicated 
the high renown of Franklin, of Jefferson, Clay or 
Webster? Respectable scions or offshoots from 
such distinguished families we have had, to be sure; 
and as judges, merchants, bankers or in the lesser 
posts of routine occupation, sire and son of integrity 
have well filled out often a succession, where genius 
neither gave nor required a scope. England herself 
may have had many dukes, earls or bishops of a 
certain designation who made good family careers 
not always in close succession, but in creative in- 



30 IDEALS OF THE REPUBLIC 

tellect she knows but one Shakespeare, one Milton, 
one Lord Bacon; while we too, sprung from Eng- 
land's loins, recall but one Jonathan Edwards, one 
Irving, Longfellow, Hawthorne or Emerson. To 
all rules there are of course exceptions, but supposed 
exceptions vindicate the rule. It is thus, therefore, 
that nature forever frustrates those who would make 
their own family predominance hereditary and last- 
ing in the world's remembrance. 

I recall but one illustrious family in American 
annals which has furnished hitherto a President of 
vigorous and independent statesmanship in two 
generations, with grandsons and great-grandsons 
still later, worthy by talent and pre-eminence of a 
similar exaltation; and this family, of sturdy 
yeomanry, took its rise in the man who first suc- 
ceeded Washington as chief magistrate of the Union 
and imparted to his favorite son ambition, educa- 
tion and superior opportunities for public station. 
All these Adamses have been civilians and states- 
men by training and inclination, and a transmitted 
example, with the personal desire for fame and 
public usefulness, conduced to a continuous indus- 
try. So, too, example rather than heredity kept up 
renown among France's Napoleons, in collateral 
kindred. As for Europe generally, the hereditary 
succession of kings rests already, as a doctrine, upon 
convenience and national stability, more than upon 
the old and effete idea of an inborn excellence and 
an innate capacity to rule; while the British peer- 
age itself is only perpetuated in influence, under 
the wastage and decay of families once fruitful in 
fame, by the infusion of new blood from the newly 
illustrious in some sporadic sphere of activity, who 



TYPES OF EQUALITY 31 

are ambitious of titled honors for themselves and 
their offspring. 



Inequalities exist, and must always exist in 
human society, while remains on earth a possible 
scope for individual advancement. In our own 
land, — one professedly of equal rights and equal 
opportunities, — men are seen intent, and often 
inordinately so, upon gaining the pomps and van- 
ities of life, with the distinctions, often petty, of 
mere title or social position. They seek to found 
families upon great wealth, and even to make mar- 
riage alliances by purchase with the bankrupt scions 
of a European aristocracy. Yet American life, on 
the whole, is of healthy movement in these days 
and fosters real happiness, with an amiable vanity, 
perchance, rather than an isolated pride. The man 
of wealth may do great good with his money, if he 
abstains from low and pampering pleasures. 

A highly intelligent German who has come to live 
among us, as a close and sympathetic observer, 
reconciles the present social inequalities of American 
life by an apt illustration. It is, he says, as though 
some congenial company were to take dramatic parts, 
each presenting theatrically one civil pursuit or 
another, higher or lower in the conventional scale, 
while underneath all such mimicry rests the basis 
of real equality, of a genuine regard, each for the 
other's standing and character, in the fundamental 
recognition of a common brotherhood. For when 
the wealthy and the working people come together 
in this country on a matter of public concern, they 
meet with a certain freedom and self-assertion by 



32 IDEALS OF THE REPUBLIC 

each individual, quite unlike the old-world or old- 
time intercourse of mankind, with its supercilious 
arrogance or condescension on the one hand, and a 
fawning or cringing obsequiousness on the other. 1 
Such an aggregate difference of manners from those 
to which he had been accustomed in his native land 
strongly impressed this observer; and so does it 
impress Americans themselves who travel much in 
European countries, or historical scholars who 
closely compare the pre-Revolutionary standards 
here of social intercourse with those of our own 
more enlightened age. 

The change in manly demeanor among Ameri- 
cans has been due to the growth of a more literal 
belief in those fundamental maxims of equality 
which the Declaration proclaimed. And surely, the 
idea that we are all brethren and fellow-citizens 
together inspires to noble life. Society still erects 
and maintains its conventional barriers, its fences, 
its sacred enclosures; yet social change and fluc- 
tuation have become so incessant among us that all 
such barriers prove but partial for staying the en- 
croachment of an irresistible tide of democracy. 
No social set anywhere can exert impressive in- 
fluence which does not to some extent court politics 
and political power; and hence an American ex- 
clusiveness, disdainful of politics, leads naturally to 
frivolous pleasures and irresponsibility. While 
levelling principles prevail here, education tends to 
equalize the opportunities, and success in life by 
wealth or worth carries its legitimate rewards for 
leaping the barricades of the elect. It is not so 
much, then, the primal advantages at birth that 

1 Hugo Munsterberg's " Americans." 



TYPES OF EQUALITY 33 

count for individual advancement in a political 
society like ours as self -improvement, assiduity, 
tact and good manners, under all circumstances. 
The gentleman, wherever born, is he who combines 
gentle and considerate manners with self-respect. 
And self -improvement, self -gain in the individual 
assures the collective expansion of that whole 
society of which each one among our many millions 
feels himself a member and an integral part. 

So much, then, for our theory of a republic and 
its social composite, as placed in contrast with the 
government where a few are privileged over the 
many through the accident of birth, where heredi- 
tary rule, aristocracy and the transmitted right 
to govern and monopolize are still maintained; 
for the principle favored and fundamental in this 
land of ours that all are created equal in the rights 
and possibilities of life, as against those ancient 
conceptions of fixed conditions, fixed caste, fixed 
pursuits in life, so prevalent still in the old world. 
We contend, as the basic fact in our development 
as a people, that, given the equal opportunities of 
early environment, tastes and training, one human 
being of a race is quite as likely to expand to great- 
ness as another; or, at all events, that usefulness 
may abound, and that those found less than their 
fellows in one respect of acquirement may readily 
prove greater in some other, so that high aims and 
high character may pervade our people regardless of 
mere pedigree. The humbly virtuous may inspire 
the intellectual, and a master-farmer or master- 
mechanic can teach something to the best trained 
scholar from the university. Even where we must 
admit that actual equality does not exist as men now 



34 IDEALS OF THE REPUBLIC 

come into social contact with one another, we hold 
up that high ideal for aspiration and encouragement 
to the coming race. 



A final difficulty of definition remains and that 
the greatest of all. Is our doctrine of man's equal 
creation to be asserted for our particular race alone, 
or as a universal one for all races alike and for all 
types of mankind? Is it a maxim for whites, for 
Caucasians only, or does it comprehend the Indian, 
the Mongolian and the Negro? Does it apply to 
races apart or to all races collectively? In the re- 
stricted sense alone many would construe this dogma 
of the Declaration, and an application to our own 
race is the most obvious and convincing. White men 
discovered and colonized America, organizing its 
institutions as they exist to-day; they planted the 
seed, tilled and cultivated the soil of democracy; and 
in the virtual assumptions of a civilized settlement 
this has been constantly a white man's government, 
with ideas brought from Europe and modified. But 
is this all? The racial differences of mankind are 
profound and far-reaching, each of us must certainly 
admit. So far as ethnology yet proves to us, races 
are most original in preserving their distinctive 
traits when they keep own breeds apart, untainted 
by infusion. Yet infusion makes an inferior race 
more forceful. Admixture and contamination have 
set in, whether within or without the law, and the 
half-breed Indian or mulatto offspring make present 
trouble, partaking, as they often do, of the mingled 
vices conjointly with the mingled intellects of their 
progenitors, and discontented as they well may be 



TYPES OF EQUALITY 35 

with an equivocal place in society. And even more 
than this may be stated. America's growing diffi- 
culty lies not in a mere difference of complexion, — 
of people white, red, black or yellow, brought into 
close contact. Even in our Caucasian race, as among 
the other leading types of mankind, subdivisions 
exist whose tendency to marriage alliance would be 
naturally apart; for Scandinavians, Slavonians, 
Teutons, Saxons and Italians, all elements in our 
population, differ considerably in blood and tempera- 
ment. 

But are we satisfied to leave the theoretical 
equality of human creation and of man's inherent 
rights to depend upon distinctions like these, or to 
assert our maxims as for a separate racial applica- 
tion? No conception of mankind which regards our 
human creation as a universal brotherhood can 
fairly do so. None which accepts a belief in divine 
revelation or imports to the human race a common 
origin, a common destiny, or a common preparation 
for judgment and eternity. The real neighbor, as 
the Christian parable defined it, is the friend of every 
one he encounters in life, — even the mean or the 
alien. Hence the true missionary spirit of our 
religion, the proselyting of souls, the uplifting of all 
nations, the spontaneous promptings of a broad 
benevolence, are all against the permanency of domi- 
nant and subjected races in relation; against the 
brother's keeper; against lasting rule by force and 
disdain ; against exploitation by the stronger or the 
chattelism of the weaker. When we read authentic 
history, we perceive change and displacement among 
the races striving for predominance ; with no one of 
them constantly in the lead or innately supreme. 



36 IDEALS OF THE REPUBLIC 

In successive eras the savage has become civilized, • 
and the civilized has lapsed back to savagery. The 
enervated and corrupt go headlong to destruction; 
the stagnant and stationary are outstripped by the 
rudely vigorous and energetic ; the race once despised 
gains dominion and the despising race falls into decay. 

Races which boasted their own superiority in the 
past have been overcome by races once deemed in- 
ferior. The time was when Egypt conquered and 
gave to what was then the known world letters, arts 
and institutions. Western Asia overcame Egypt, 
Greece overcame Western Asia, Macedon overcame 
Greece, Rome overcame all these together. Rome 
herself, stretching her empire far and wide, forgetful 
of her own simple antecedents, yielded at length to 
barbarous northern hordes, prominent among whom 
were the rude Gauls and Saxons. Modern Europeans 
have vied with one another in monarchies, more or 
less limited, until at length in this new dawning 
century the British or British-American proudly 
conceives himself to be the rightful leader of the 
universe. Yet what do we already discern on the 
horizon of the Orient, where the pagan Japanese 
strides rapidly into greatness, hopeful to redeem his 
long despised Mongolian type of mankind from 
European contempt and spoliation? This people 
Russia lately opposed in direful conflict, her own 
vast Scythian population long reckoned by the 
English-born but semi-civilized ; and yet of growing 
influence, despite defects, among the recognized 
powers of the earth and giving promise of more 
liberal institutions in the future. 

From Oriental countries man derives the earliest 
rudiments of learning and the arts, our Christian 



TYPES OF EQUALITY 37 

religion, all the great systems, in fact, of sacred 
philosophy which have endured through centuries. 
From southern Mediterranean Europe came classical 
literature, music and the fine arts, and those funda- 
mental codes of civil jurisprudence, too, which 
regulate the relations of modern commerce and all 
equitable procedure. Northern Europe and the 
Anglo-Saxon supply our common law and the rudi- 
ments of individual and domestic rights and civil 
liberty, strong in their pristine simplicity. Spain 
discovered and came near appropriating to herself 
this new world. We Americans, aided and befriended 
at the outset by France, take now strong precedence 
for moulding politically this western hemisphere; 
yet who can say, in view of past history, that we 
shall preserve our lead in these two Americas 
through centuries to come, if we become blind to the 
fact that there are distracting racial elements here 
in our own midst, as well as in our continental 
vicinity, to deal with justly? That all compulsory 
rule over alien races or peoples is and must be pre- 
carious and prone to vast vexation, wherever the 
true spirit of conciliation and fraternal sympathy are 
wanting? 

Race characteristics, then, racial relations, do not 
remain constantly the same in human life, among 
confronting governments; nor are the problems of 
race superiority and domination to be determined 
for all time to come by prevalent social or political 
conditions. The dusky Indians, whose fate within 
our own expanded domains well nigh reaches ex- 
termination, because of a constant antipathy which 
kept settlers and aborigines at enmity, have fared 
much better in Spanish- American jurisdictions to the 



38 IDEALS OF THE REPUBLIC 

south of us, where they coalesced, mingled with their 
conquerors, and have produced great leaders. 



Our chief racial problem here in the United 
States is, of course, with the negro; but to this we 
may add, if ambition drives us to conquest in Asia 
and its outlying archipelagoes, that of other colored 
types, besides, with whom we have already been 
brought into difficult and unassimilating relations. 
Between the negro, on the one hand, whom the 
mercantile avarice of progenitors brought to our 
Atlantic shores by force, and the Malay or Mongolian 
of the Pacific, on the other, whom we seek to repel 
from a desired settlement among us, the safe guid- 
ance of this Republic, bearing its ark of the cove- 
nant, will through centuries to come be a difficult 
one. We cannot safely deal with exotic races save 
as equals in God's sight, capable of self -improvement 
and self-government, and entitled to considerate 
dealing and their own liberties, so far as we deal 
with them at all. We must educate if we keep them. 
We must respect their own customs and preferences. 
We must regard them ultimately as fellow-natives 
or brethren, as fellow-inhabitants, as children of a 
common Father, as men created with equal natural 
rights to our own to enjoy with us ; or else we must 
seek to exclude, to dismiss, to part with them, to 
encourage their departure, and bid them God-speed 
elsewhere with their own chosen systems of rule 
founded in their own free consent. 



As to American negroes, once held in slavery, 



TYPES OF EQUALITY 39 

their immense numbers, their rapid proportional 
increase as a race in our very midst, during the last 
forty years, to dismiss them or to re-enslave and 
reduce them to utter and permanent subjection, is 
not easy, nor industrially desirable; nor can any 
eventual exclusion be safely looked for without a 
mutual consent and their own voluntary separation 
and departure. 

In the Dred Scott decision of 1857, — now happily 
set aside by the mandamus of a people's retribution, 
though at the cost of fratricidal war, — the majority 
of our supreme court held that negroes were not in- 
cluded, nor meant to be included, in the general 
words of our document of independence; that they 
were regarded in 1776 as " beings of an inferior order 
and altogether unfit to associate with the white race, 
either in social or political relations." But an able 
minority of the court dissented from that opinion; 
and for historical statement the majority seem to 
have erred here in laying stress upon old colonial 
laws that really applied not to the blacks alone, but 
to early bondsmen, both black and white. Our 
greatest statesmen of 1776 had unquestionably re- 
garded the Declaration of that year as holding up the 
highest ideals for our united future. Jefferson 
emphasized this when he said: "Every man and 
every body of men on earth possesses the right of 
self-government; they received it with their being 
from the hand of nature." So, in the anti -slavery 
petition of 1789 to Congress, to which the great 
Franklin set his last public signature, it was laid 
down that " equal liberty was originally the portion 
and still is the birthright of all men." 

A distinguished educator, President G. Stanley 



40 IDEALS OF THE REPUBLIC 

Hall, 1 who has made a calm scientific study of the 
negro as he exists in America in this later era of 
emancipation, states that of the African race — the 
only one in fact among mankind that ever came to 
this country without its own consent — the de- 
scendants in 1900 under the last census numbered 
well nigh nine-fold of the colored population found 
here in 1800 ; and that, adhering, as they now incline, 
to the warm South, the problems concerning them 
for an indefinitely long period are likely to grow 
every year in complexity, as well as practical im- 
portance. No two races, taken as a whole, he ob- 
serves, differ historically so much in their traits, 
both physical and psychic, as the African and 
European. He candidly admits that it was an error 
of opinion at the North — in which he honestly 
shared — which gave to the negro the ballot in 1867, 
as a protecting or a penalizing weapon to be used at 
the South ; and he hails the new and reconciling plan 
of Booker Washington to maintain, at the present 
stage of our great problem, the social and political 
difference of his people from the whites, but yet to 
unite the two races industrially for the general 
wealth and advancement of the community. To 
this programme our educator suggests but one modi- 
fication that seems needed, and that is what the ac- 
complished Du Bois pleads for, on behalf of colored 
men like himself: opportunity for all the higher 
cultural elements of education to every exceptional 
negro who can take and make good use of it. 

President Hall recognizes in this colored race great 
capability when thus wisely conducted in its progress; 
in such gifts, for instance, as an intense and large 

1 Mass. Hist. Society Coll. Feb. 1905. 



TYPES OF EQUALITY 41 

emotional life, an exquisite sensitiveness to nature, 
large talent in the field of music and oratory, rare 
good humor, patience and jollity, capacities for 
friendship, loyalty, patriotism and industry, and, 
notwithstanding strong sensuous passions such as 
discouragement and hate must drive him to indulge 
so brutally, a peculiar depth of religious life. To 
this just statement I may add that recent records at 
the Patent Office show our native negro an inventor 
of industrial contrivances of decided usefulness, thus 
refuting the opinion formerly prevalent among us 
that the negro mind is incapable of originating. 

Whatever, in the dim future, may be the destiny 
of this hitherto despised race so intimately and 
pathetically, even if unfortunately, blended with our 
own, let us welcome that kindly study of their traits 
and capacities which may sooner or later afford a 
truer understanding of our social problem, and place 
the solution of their proper destiny upon a solid and 
rational basis. The time has now come (I quote 
President Hall's own language) to " take the prob- 
lem out of the hands of politicians, sentimentalists 
or theorists, and place it where it belongs — with 
economists, anthropologists and sociologists." 

That other stern racial problem of to-day — 
namely, the relation which we Americans are destined 
to sustain towards Asiatics of the Mongolian or 
Malaysian type, towards whom we have lately 
assumed some perilous responsibilities in the Philip- 
pines, — has reached a primary stage only, where we 
are comparatively free to sheer off and leave the 
solution to its course. A new word has lately come 
into vogue among Americans, once trainers of all 
their territories into co-equal statehood, — it is the 



42 IDEALS OF THE REPUBLIC 

word " dependencies;" it has no rightful place in our 
political vocabulary, and I pray that it may some 
day depart. As for Mongolians of the Asiatic main- 
land, where we have claimed as yet no solid footing, 
though more than once flitting, moth-like, near the 
flame of Europe's commercial candle, we practise at 
present the policy of exclusion from our domains on 
this continent. And so far as the antipathy of races 
on home soil may endanger our institutions, and 
tempt us to racial subjection or a degrading ad- 
mixture of blood and temperament, I am for the 
policy of Asiatic exclusion here, under a wholesome 
and enlightened regulation, with just and suitable 
exceptions. 



Against Mongolian, Malaysian or African elements 
among the future population of these United States, 
I would interpose all the solid barriers possible for 
maintaining socially the purity of that white and 
European stock, whence we ourselves are derived, 
and to whose dominance hitherto the strength and 
stability of our free institutions are chiefly due. Nor 
should I wish that other white settlers here from the 
continent of Europe should supplant those natural 
leaders of America in whose veins flows the blood of 
a British lineage. Yet to the future American of 
Caucasian antecedents all the present nations of 
Europe are destined to contribute. And even as 
against those repugnant races of complexion totally 
different, to preserve, unmixed and uncontaminated, 
our racial types, is not, among a conglomerate peo- 
ple, of easy accomplishment. We abhor, we detest, 
so we say, all such amalgamation. And yet our only 



TYPES OF EQUALITY 43 

real shield of relief thus far is that of illegality, 
illegitimacy; and in unlawful promiscuous con- 
cubinage nature herself contradicts our postulate 
that all races must of necessity keep separate and 
undefiled. In point of fact, society will need to 
fortify itself more strongly, not so much by more 
stringent laws condemning the status of such off- 
spring or spouses as by the active prosecution or 
interception of white men bent upon their own 
sensual delights and reckless of results. As for 
miscegenation of complexions in bona fide marriage 
and a sexual companionship of love and constancy, 
those who are themselves of blended blood will yet 
make trouble for the publicist and legislator, where- 
ever the old impediments of race, color or social con- 
dition are already ignored and individuals may 
consult their tastes and personal inclination in such 
matters. With regard to Oriental admixture, I 
read quite lately, in one of our newspapers, of a 
young white woman who took right willingly for her 
husband a Chinaman who had become somewhat 
Americanized in habits and converted to Christianity, 
and avowed openly her preference for him over any 
white man of her acquaintance. 

In all such racial problems of the future, as it 
seems to me, the idea which most naturally ap- 
proaches faith in the common capacity of all man- 
kind for self -discipline, self -improvement and a high 
advance of civilization, is to become the dominant 
one for future centuries; so that though the world 
may never reach the perfect realization of natural 
equality in fundamental human rights it will yet 
approximate such a solution, justify our Declaration 
as applicable to all mankind, by races at least, and 



44 IDEALS OF THE REPUBLIC 

vindicate each separate race among them in the 
assertion of its own rightful freedom and independ- 
ence. That kingdom on earth for which we pray, 
whose type is as that of the kingdom of heaven, 
cannot possibly consist in a brute survival of the 
fittest, nor in the appropriation of all the good things 
upon earth by any one favored race or nation. This 
world was made for all mankind to live upon and for 
all humanity to share in. 

Different types of mankind have come to dress 
more alike, to approach each other in cleanliness, 
and we find in consequence that they look more 
alike. The Caucasian himself in the remote wilder- 
ness or mining camp, — rude, unlettered, dirty, ill- 
dressed, delving in the dirt like a dog or carousing 
intemperately, — is a repulsive enough object ; while 
on the other hand we already recognize with some- 
thing of affiliation the cleanly and polite Oriental 
who has adapted himself in costume and manners to 
America. The neat and vivacious Japanese, trained 
in our high schools, is but a Mongolian, after all, and 
a heathen; though thus far we have found him a 
more captivating type of the Mongolian than his 
predecessor, the uncouth Chinaman, opium-eating, 
outlandish in habits and costume, who seems so 
doggedly impervious to the ways of those among 
whom he seeks a degraded living as laundryman 
or cheap laborer. But in whatever race of mankind, 
there is a long, long distance between the rude manual 
toiler and the polished son of scholarship and refine- 
ment. 

Surely, then, race assimilation may extend 
much farther than in our present age of experience 






TYPES OF EQUALITY 45 

among human creatures. Yet the racial differences 
of mankind, I admit, may well have established 
obstacles socially impassable for human nature in 
any wholesale sense; and hence man's universal 
brotherhood, under which that grand postulate of 
an equal creation was first put forward for experi- 
ment here, may at some future date of our history 
prove to consist, not in radical amalgamation so 
much as in a parallel advancement of distinctive 
types in color and complexion. In the latter event 
not only will the Orientals of Asia preserve and 
vindicate on their continent their own autonomy, 
but we may look in the far future for a voluntary 
exodus of our native civilized Africans from the 
whites who once enslaved them, when blessed with 
leaders and educators of their own race, wholly 
enlightened and competent to conduct them forth. 
Finally may come about, in the providence of God, 
the just reapportionment of this earth's wide surface, 
so that each leading race may at length develop 
apart its destiny over domains exclusively its own. 
If the Hon and the lamb are not in this world's 
millennium to He down together in perfect peace and 
harmony, each wiU be found entitled to his own safe 
fold, free from the other's aggression. 

For the long interval, however, a novel, notable 
and perhaps decisive experiment of racial growth 
and interfusion awaits us of America, in respect, 
most intimately, of the negro problem. And in 
deaHng with the successive stages of that experiment 
we should neither shirk the share of intelligent duty 
which devolves upon our own generation nor specu- 
late too idly upon conditions which may exist after 
we ourselves have passed away. No false altruism 



46 IDEALS OF THE REPUBLIC 

of the present can guarantee the moods and methods 
of those who are to succeed us. Unquestionably the 
duty of the present is to educate, to strengthen, to 
uplift the black freedman in our midst, and most of 
all to encourage in him the capacity to contrive for 
his own betterment, and make himself a useful and 
self-supporting member of the society in which his 
present lot is cast. We are not likely, out of com- 
passion and tenderness, to welcome him to our sev- 
eral homes too readily, nor to grant him again a 
premature political advancement ; yet, all the same, 
we should hold fast to the eternal truths of man's 
equality and capacity for self-improvement upon 
which our whole fabric of government primarily rests. 
And, however scrupulous we may be in avoiding that 
defilement and deterioration to ourselves which 
might come from too familiar a racial intercourse, 
we should avoid still more insistently that worse 
deterioration which awaits inevitably both races 
where brutal domineering and rapacity on the one 
side conduce to brutal hatred and violence on the 
other. We have failed as civilizers with the Indian 
problem of the United States ; let us not fail equally 
with that of the more confiding African. 

Nor as to human equality itself, in the broadest 
sense, need we imagine that we or our children shall 
see that happy state existing; yet, none the less, 
should liberal laws and liberal administration tend 
to its establishment ; for, given a universal progres- 
sion to the human race, we shall surely approach that 
condition, however slowly. 



CHAPTER III 

CIVIL RIGHTS 

CIVIL rights grow out of the relation of in- 
dividuals to an organized society, to civil 
government. They are in strictness defined 
as those of a citizen (civis) by birth or adoption in 
a commonwealth, as distinguished from inherent 
individual rights as they rudely exist in a primitive 
state of nature. No special procedure is needful to 
make the native-born a citizen ; for citizenship is the 
birthright of all who are actually born in our juris- 
diction, though one of foreign birth must be natural- 
ized in order to fully acquire such a status. 

The citizen learns the full source of his privilege, 
as such, whenever he exercises political rights at 
home, or, while abroad, comes into collision with 
some foreign potentate and seeks to have his own 
government intervene and protect him against 
menace or outrage. " I am an American citizen " 
is a plea, the world over, quite as effectual at this 
day, if not so specially privileged, as that of the 
ancient free-born Roman, against inflicted death, 
plunder of property, or personal captivity in a foreign 
land. Yet the great fundamental rights which a 
civilized country recognizes and protects, in modern 
times, are not literally and exclusively confined to 
citizens. For in those earliest articles of amendment 



48 IDEALS OF THE REPUBLIC 

to the constitution of the United States, which secure 
to one, as against his own government, religious 
liberty, free speech, a free press, the free right of 
petition and immunity from unreasonable search and 
seizure, it is not simply citizens whose rights and 
immunities are thus definitely upheld, but " the 
people." And again, in those articles of amendment 
which follow, sustaining the individual against all 
arbitrary arrest or imprisonment, or the attempted 
deprivation of life, liberty or property without due 
process of law, it is " no person " who shall be held 
thus answerable at the caprice of the public, nor 
shall " any person " suffer molestation in such 
fundamental rights. 

If all " persons " are thus entitled to protection 
from the government, no harsh discrimination in 
such respects ought to be drawn against those foreign- 
born among us who have not been formally natural- 
ized, but might be if they took the proper steps. I 
am aware that our supreme court has in some late 
instances seemed to discredit so liberal a doctrine, 
while announcing, as against all " aliens," that Con- 
gress may order them deported summarily, at all 
events, as well as forbid their arrival. And thus 
does the principle of the old " alien law," which 
made such outcry during John Adams's presidency, 
find judicial vindication in another century. But 
all this seems best applicable to great public emer- 
gencies, or so that the United States may send or 
keep away those from abroad who make an unde- 
sirable element in our population and are not readily 
absorbed into the common mass. For useful, peace- 
able and intelligent members of our society in times 
of peace all the usual civil safeguards ought to avail, 



CIVIL RIGHTS 49 

whether they are technically " citizens " or not; and 
all the more so if it can be shown that they were 
virtually accepted here as desirable persons, under 
all the circumstances, through lapse of time, or have 
meant to become legal citizens and had not full 
opportunity. 



Under all civilized government, one has polit- 
ical as well as civil rights and duties. But these should 
be stated apart, and hence in this chapter I confine 
myself to the rights and duties more purely civil than 
political, — to such, for instance, as should entitle 
women and children, as well as men, to the ample 
shield of the law, whatever their legal disabilities, 
and even though the right to vote or hold public 
office be wholly denied them. These civil rights, 
appropriate to all who have the status of citizens — 
or more broadly as including " persons " resident or 
part of " the people " — are largely deducible from 
the rights of nature which I have considered, though 
modified somewhat to suit the exigencies of organ- 
ized society. 

Indeed, to a great extent, civil rights are prac- 
tically the rights of human nature, as applied and 
developed in a society under civil government. 
Thus, life, liberty and property are still rights in- 
herent in the inhabitants of an organized common- 
wealth, while each one of us must respect all others 
in the exercise thereof. Moreover, the common- 
wealth exerts its collective force through the courts, 
or by some other just exercise of sovereign authority, 
so as to sustain each individual in his rights, under 
due limitations, and punish the refractory. Besides 



50 IDEALS OF THE REPUBLIC 

civil redress in damages or otherwise for private 
injury or a breach of contract, criminal discipline is 
afforded; jails and prisons are built, the gallows is 
erected, and a convicted culprit forfeits life, liberty, 
property, all that he has, it may be, in punishment 
for his transgression upon the rights of another. 
Then again, government, with sovereign functions to 
execute, with its possible emergencies and the para- 
mount relation which it sustains towards all who live 
under its control and authority, interferes still 
further with one's natural and individual rights; 
transgression may be made upon the rights of govern- 
ment itself. Male conscripts are enrolled to fight, 
taxes are levied, crimes against sovereign authority, 
such as treason or rebellion, are added to the category 
of the criminal code. So, too, with regard to man's 
inherent right to conjugal companionship and the 
founding of a family, public policy here limits and 
defines, for the sake of good morals and the welfare 
of society, the extent of a personal license in such 
direction. It restrains man and woman from pro- 
miscuous commerce even when founded in their 
mutual consent; it holds divorce under public con- 
trol; it compels monogamy; it guards the welfare 
of tender offspring in each marriage union and com- 
pels a family support where it may. And finally, in 
the "pursuit of happiness " or for shaping out an in- 
dividual career in life, one finds, while in organized 
society, the delicate meshes of a net cast over him 
by civil and municipal law, — invisible and harmless 
so long as he goes on in a just and permissible course, 
but liable to trip, hinder and entangle him whenever 
he leaves the permitted path. As Americans and 
members of this Federal Union we find some such 



CIVIL RIGHTS 51 

regulations within the sphere of a national authority ; 
while the vast residuary mass of civil rights and 
obligations are regulated and enforced by the several 
States apart. 

All civil law, all sovereignty, safeguards, properly 
speaking, those primitive rights which our Creator 
has made inherent and unalienable in each member 
of the human race; and it seeks to comply with 
Divine injunction in such respects so far as God's 
mandate may have been apprehended by the law- 
giver. Even were such rights " alienable " instead, 
it cannot be presumed that a man means to surrender 
them. But human government is ever imperfect, 
like all human endeavor ; and hence we find an actual 
variation of laws and customs for judicial interpre- 
tation, from age to age, while impulses of immediate 
passion and desire often blind both magistrates and 
subjects to the dictates of eternal justice. All that 
we may hope for, and more than we see even yet 
accomplished, is that our human conception of the 
Divine mandate may become clearer as we progress 
towards those standards of immutable excellence 
which blend earth and heaven into a perfect con- 
cord. 



No more appropriate exposition of civil rights 
inspired by the later genius of our institutions can be 
cited in this connection than that which is contained 
in the first section of Article XIV of amendments to 
our Federal Constitution. " All persons born or 
naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside. No State shall 



52 IDEALS OF THE REPUBLIC 

make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life, 
liberty or property without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws." Here we still see the word 
" person " used as though to extend still more widely 
to all actual bona fide inhabitants of America the 
most essential rights of " citizen." Slavery had just 
been abolished throughout the Union; and here in 
1866 the right of citizenship, once denied by our 
judicial tribunal to the negro, bond or free, was 
positively extended to "all persons " born or 
naturalized within our jurisdiction, regardless of race 
or color. And such citizenship applies, not only to 
the United States in a federo-national sense, but to 
the State wherein one resides. 

Yet civil rights, even as thus distinguishable from 
rights political, have their limitations; and during 
the groping era of reconstruction which followed our 
Civil War and the downfall of slavery, the courts 
found frequent occasion to correct those officious 
friends of the black man who now contended, against 
all former prepossession and prejudice of our vast 
majority, that civil rights were fairly tantamount to 
social rights. Congress, by a civil rights bill, en- 
deavored, but in vain, to break down the walls of 
obstruction to a free racial intercourse and force 
whites and negroes to mingle somewhat indiscrimi- 
nately on terms of equal intercourse. In all stages of 
human progression, however, civil society may 
maintain various class barriers of its own, such as 
custom and personal choice should regulate rather 
than statute law at all; and the several States, 



CIVIL RIGHTS 53 

moreover, save so far as the written text of our 
Federal instrument proves positive and peremptory, 
retain their own authority as before, in making police 
or social regulation within their respective con- 
fines. 

Public schools, for instance, may be maintained 
within a State, where colored children and white 
children are taught apart ; nor should the practice of 
one State in this respect, where most of the population 
are whites, impede the discretion of another where 
the blacks are proportionally numerous. And the 
same holds true of churches, places of amusement, 
local travel by land or water and inn accommoda- 
tions. We may, as enlightened citizens in a philan- 
thropic State, avoid such offensive distinctions ; but 
we cannot rightfully force our own views in this 
respect upon those of other States, nor should we fail 
to allow for differences of social condition and opin- 
ion in commonwealths distant. 

Congress, besides its power to enforce amendment 
XIV, as that amendment provides, has the control 
of inter-state commerce; but its full jurisdiction 
over matters of local police and social regulation is 
chiefly confined to Washington city or the District 
of Columbia. And there, in those reconstruction 
years, as I well remember, obtrusive friends of the 
colored man set him to asserting social claims against 
reluctant entertainers. One who was refused a seat 
among other patrons of a fashionable restaurant in 
the city sued the proprietor for damages. The latter, 
while the suit was pending, made use of a singular 
menu which set forth an exorbitant price for whatever 
might be served at his tables, but stated in print at 
the bottom " regular patrons supplied at reduced 



54 IDEALS OF THE REPUBLIC 

rate." This meant that white customers alone were 
to be charged as formerly. The negro lost his case; 
for the court construed the act of Congress as in- 
tended for application to public-service vocations 
only, and distinguished in this respect between the 
legal innkeeper, who must entertain all transients 
alike, and the mere host of a restaurant, who stands 
upon the usual footing of private business, and may 
choose his own line of customers, like a lawyer, a 
physician or a shopkeeper. 



In general, then, one's civil rights are deducible 
from his natural rights, as applied to the existing 
society to which he belongs. Government secures 
him, most of all, in life, liberty and property. All 
citizens henceforth, all persons on our American soil, 
regardless of race, color, social standing, or any other 
casual condition of life, are entitled to equal legal 
protection, if subject to our jurisdiction, and es- 
pecially if born or naturalized here. One cannot 
be killed, nor imprisoned, nor deprived of his pos- 
sessions without due public intervention under the 
usual safeguards. In matters of civil or criminal 
procedure, in pleadings, testimony, trial by peers 
and judgment, — the lofty and the lowly may invoke 
alike the aid of the courts. " To none we sell, to 
none we deny justice." The humblest and the 
poorest in the land of whatever complexion are to be 
equally upheld in individual rights and immunities 
with the wealthiest and the proudest. So, too, in 
the pursuit of life's choice blessings, each, as his 
means and talents give him opportunity, may take 
his own chosen course to procure them. Women 



CIVIL RIGHTS 55 

and children are to be thus protected and not grown 
man alone. Any and every adult is free to marry 
and found, with the spouse, a home and family, and 
the rights of each in a family shall be respected. " A 
man's house is his castle " has been a favorite maxim 
of the common law; and no wanton invasion, search 
or pillage of one's domestic abode is to be tolerated. 
In short, to encourage each member of society to 
keep or better his or her original condition and to 
improve the individual life as occasion may afford, — 
this is the high purpose and inspiration of our system 
of government. 

But if one individual in the republic should be thus 
upheld in civil rights, so, too, are the civil rights of 
all others to be equally respected. Hence no one may 
force his companionship upon others ; nor compel a 
friendship, a marriage, or even a business intimacy, 
to please himself. If one may go by his own tastes, 
so may his neighbors by theirs. In associations for 
religious or secular purposes persons are left to their 
mutual arrangements, — one may cultivate or accept 
acquaintance, offer or seek patronage, invite cus- 
tomers, here and there, and the body politic will not 
assume to meddle. True, in a republic like ours, and 
especially among new surroundings where all is 
simple, a general recognition among neighbors may 
be looked for; and our institutions, both civil and 
political, discourage anything like permanent class 
conditions. Yet the commonwealth keeps within its 
proper bounds of influence or authority and leaves 
society to its natural flow. If in any respect America 
is to fail of her highest purpose hereafter, it will be 
mainly because of the immense accumulation of 
wealth which a few gain now-a-days in comparison 



56 IDEALS OF THE REPUBLIC 

with the great majority. All legislation in a republic 
should by every wise indirect process, where it may 
not positively prescribe, counteract such tendencies 
as far as possible, so as to keep the fruits of exertion 
fairly distributed and to discourage luxury. It 
should sedulously avoid favoritism and partiality. 
Laws which tax successions, restrain entails and 
perpetuities, favor equal distribution among intestate 
kindred, rather than primogeniture or the preference 
of males to females in an inheritance, — all work 
legitimately in such direction. If shirtsleeves come 
back to shirtsleeves in a third generation, as the 
saying goes, it ought not to be because offspring in 
the second have been led to squander and dissipate, 
but because fortunes, though unimpaired in the 
aggregate, become minutely subdivided. 



Maxims which catalogue and define one's civil 
rights abound, with others of a more political cast, 
in our State constitutions ; some of the more impor- 
tant of them, such as were framed in " the old 
thirteen," having been later embodied in the con- 
stitution of the United States among the first ten 
amendments to which I have alluded. These pro- 
visions, once unionized, have been copied in turn by 
all our later States and in all our later State constitu- 
tions. 

Out of the great mass of maxims thus offered, let 
us select for description some of the most pertinent 
and permanent. That no person shall be deprived of 
life, liberty or property " without due process of law " 
— this right has been so endeared and so familiarized 
that the prohibition as originally phrased in our fifth 



CIVIL RIGHTS 57 

amendment received the unique honor of a repetition 
verbatim in the fourteenth, as though to give double 
assurance to the people. " Due process of law " 
means the safeguard of one's individual rights in the 
respect stated from all public interference, aside 
from such correct and orderly proceedings, consider- 
ate of private right or immunity, as may have been 
imposed by what our English vernacular has long 
styled " the law of the land " — that is to say, a law 
sound in policy and basic principle, and operating 
upon all the community alike, without respect of 
persons. The close relation, in significance, of " due 
process of law" with "law of the land" — both 
Anglo-Saxon phrases time-honored and familiar, and 
both used with emphasis in the constitution of the 
United States — has long been conceded in British 
and American jurisprudence; and against all at- 
tempted favoritism whatsoever, all arbitrary or des- 
potic use of sovereign process, — executive, judicial 
or legislative, — the individual may justly invoke 
such protection. 

Another comprehensive maxim which we find 
coupled with the foregoing, so as to make individual 
rights still more secure against sovereign caprice or 
an inconstant public, forbids that private property 
be taken for public use without just compensation. 
This means not recompense merely, but a just one, 
and such practically, in any last resort, as a tribunal 
unbiassed may upon due process of law and due in- 
vestigation — with a jury intervention, it may be — 
deliberately award. We hear much proposal at the 
present day of the municipal or public ownership of 
utilities, of wresting railways or other vast moneyed 
concerns from the control of their corporate owners. 



58 IDEALS OF THE REPUBLIC 

But through all such heated controversy let us bear 
in mind, as a broad principle to be fundamentally 
respected by nation, State or municipality, that the 
private property taken for any such public purpose 
must at all events be justly compensated ; not com- 
pensation by any wilful or self-imposed standard of 
under-valuation by the purchasing public, whose 
temptation must often be to confiscate, misappro- 
priate or destroy private property when passion is 
aroused ; but on the whole a just compensation. If 
so wise and salutary a maxim has been a solid wall 
of defence to private ownership rights in times past, 
it is likely to prove a bulwark immeasurably needful 
in troublous times to come, if socialism gets rampant. 1 
Private vested rights must be sacredly respected 
under any circumstances. It is for individuaHsm, 
not communism nor imperialism, that our govern- 
ment stands, while such maxims endure; and our 
prosperity hitherto, as a people, is largely due to the 
assurance thus given that private enterprise shall 
hold its reward securely. 

For a perpetual safeguard to personal liberty, the 
right of habeas corpus holds, both in England and 
America, an impressive prominence. Recognized, 

1 This prohibition was asserted in various State constitutions of the 
eighteenth century before the Federal constitution, by 1791, became 
amended in that respect ; the Virginia bill of rights of 1776 leading off 
with a protest directed against all government exactions of an arbitrary 
nature. States to this day preserve that organic prohibition under one 
or another variation of expression. Thus Indiana announced by 18 16 
that a man's particular services, as well as his property, should not be 
taken from him without " just compensation " ; while Ohio had earlier 
given to the phrase a novel turn from the standpoint of public advan- 
tage. For the right of eminent domain is essential to government. In 
other words, (to quote this Ohio constitution), private property shall 
always be subservient to the public welfare, provided just compensa- 
tion be given. Corporate franchises and other incorporeal rights of 
property are here included. 



CIVIL RIGHTS 59 

though not originating, under Charles II in the 
famous act of 1679, this right has been claimed and 
highly prized by English freemen from the earliest 
known era of our law. Whether an individual's 
seizure and confinement be the act of sovereign 
authority — of a President, a governor or a legisla- 
ture — or that simply of some other private individ- 
ual, — whether the party aggrieved be an adult or 
of such tender age that some one else must intervene 
on his behalf, — the right exists as his, by virtue of 
such writ, to be brought before a common-law court 
for a summary hearing; and if found illegally de- 
tained of his liberty, the prisoner must at once be set 
free or remitted to a rightful custody. Of such vital 
consequence to the individual is habeas corpus in a 
commonwealth that some of our States concede the 
right without qualification; but our Federal con- 
stitution provides, as also does English statute law, 
that in great exigencies of public danger, external or 
internal, a suspension of this writ may be allowed to 
a certain extent. " Unless when in cases of rebellion 
or invasion the public safety may require it," is the 
careful reservation here expressed, thus recognizing 
the right as legally unimpaired so long at all events as 
society is in its normal condition and the public safe. 
Under United States jurisdiction the permitted sus- 
pension of habeas corpus rests ultimately with the 
legislature. But Congress may not be in session nor 
capable of acting promptly and efficiently at the 
moment of danger; hence public emergencies arise 
where the President, as chief executive, as civil and 
military head, as guardian of the public safety, may 
himself judge of the exigency and suspend the writ ; 
but subject, nevertheless, to the controlling direction, 



60 IDEALS OF THE REPUBLIC 

the approval or disapproval of Congress upon oppor- 
tunity later. But such executive discretion was 
challenged and protested against during our Civil 
War by Chief -Justice Taney and others; notwith- 
standing which, President Lincoln claimed steadily 
and repeatedly exercised that right, even after Con- 
gress had partially defined the general limits of a legal 
suspension; and this he did upon his own solemn 
responsibility, while Congress was not in session, 
claiming that a still greater exigency had arisen than 
Congress had already provided for. 

Against " unreasonable searches and seizures " 
our people are secured ; hence the old poaching and 
prying wholesale " writs of assistance " of colonial 
times are forbidden, and only sworn search-warrants 
can be allowed operation which furnish particular 
description. 



Other civil rights of the individual upon which 
governments, State and national, much insist concern 
the usual administration of justice in the courts. 
Thus is it, most of all, with criminal prosecutions; 
for here, as Virginia's bill of rights led in pronouncing 
in 1776, one has a right to know the cause and nature 
of his accusation, to be confronted with the witnesses 
and accusers, to call for evidence in his favor, and to 
be tried by an impartial jury of the vicinage, without 
whose unanimous consent he cannot be found guilty ; 
nor ought one to be compelled to give evidence against 
himself. Our Federal constitution insists, besides, 
that presentment must be made by a grand jury for 
any capital or other infamous crime ; that no person 
shall be twice put in jeopardy of life and limb for the 



CIVIL RIGHTS 61 

same offence ; that the accused shall have a right to a 
speedy and public trial; that compulsory process 
shall issue in aid of the testimony on his behalf ; and 
that at the public cost, if need be, he shall have the 
assistance of counsel. x Such American rules are fairly 
fundamental. 

Trial by an impartial jury of the vicinage or neigh- 
borhood, whose verdict must be unanimous to take 
effect, has been deemed a precious right in all criminal 
procedure. " Even in civil suits," adds the Virginia 
bill of rights, " the ancient trial by jury is the pref- 
erable mode, and ought to be held sacred; " but on 
this latter point American practice yields somewhat 
to the mutual wishes of litigants. " Jury trials may 
be waived by agreement " is the modern proviso of 
most States in controversies purely civil, so that 
parties may let the judge himself decide ; and other 
experimental changes are seen here and there, — as 
in dispensing with unanimous civil verdicts, or in 
permitting civil juries to be composed of less than 
twelve men. For jurymen in awarding civil damages 
are liable to be led astray by prejudice or sympathy ; 
and their usual bias is against the rich and powerful 
and especially all corporate defendants. To secure 
impartial justice upon the facts in litigation, then, an 
honest judge or referee may often be better trusted, 
as well as for sifting the testimony where civil issues 
are complicated. But in criminal cases, on the other 
hand, where life or liberty of the person is in jeopardy, 
trial by a jury of one's peers must ever be a strong 
reliance for the accused, and in some States juries 
have here an express right " to determine both the 
law and the facts " or even to fix the penalty, so that 

1 Amendments V, VI. 



62 IDEALS OF THE REPUBLIC 

the fate of the party arraigned shall depend wholly 
upon their verdict. No government can have its 
arbitrary way in prosecutions, so long as honest juries 
from the people are impaneled to decide " guilty or 
not guilty." 

Excessive bail is commonly prohibited, likewise 
the infliction of cruel or unusual punishments. Hence 
malicious annoyance in causing arrest is hindered, 
on the one hand, and brutal infliction of the law's 
penalty on the other. What is a " cruel or unusual " 
punishment, however, in one age may not be in 
another, and the fact that some new mode is intro- 
duced does not condemn it as " unusual " if it be 
humane and deserves to come into use. " Cruel " 
and " unusual " are words inseparable here in a 
rational sense. Instruments of ignominious discipline 
for petty criminals, once familiar both here and in 
England in the Revolutionary age, have mostly dis- 
appeared and might now be thought unusual, such 
as the stocks, the pillory and the whipping post. 
Men are no longer maimed, cropped and branded for 
crimes, as formerly ; nor does the culprit swing from 
the gallows, as was once the case, for stealing, rob- 
bing, counterfeiting or for any other crime of which 
he was adjudged guilty, short of murder in the first 
degree. 1 The gallows itself, which took the place of 
beheading upon the block, is already yielding to the 
less painful infliction of electrocution in a chair ; and 
electrocution, as courts have decided, is not to be 
forbidden asa" cruel or unusual punishment " pro- 
hibited under that phrase. That old lex talionis — 
" an eye for an eye and a tooth for a tooth " — may 

1 Even treason against the United States may now, under a statute, 
be punished at discretion by mere imprisonment. 



CIVIL RIGHTS 63 

well be thought barbarous and obsolete to-day; yet 
to me it seems that the other mandate " whoso 
sheddeth man's blood by man shall his blood be 
shed " is lastingly just and applicable. When men 
become humane enough not to slay or shoot down 
their fellow men in cold blood this death penalty will 
disappear without repeal or amendment in the code ; 
but society meanwhile has neither adequate pro- 
tection nor an adequate penalty without it. The 
cruelty lies in the individual who has provoked such 
punishment. 

We may well, however, confine this most solemn 
expiation to the crime of crimes, leaving imprison- 
ment for a longer or shorter term and the imposition 
of fines and penalties to comprehend all other retri- 
bution. Imprisonment itself, under present condi- 
tions, humane and sanitary, is far less terrible to 
endure than in the days of our forefathers . More than 
a century ago American States led the world in 
abolishing imprisonment for debt ; while in reforma- 
tion of the criminal, as an incident of his confinement, 
Pennsylvania set the first real example which im- 
pressed civilized society abroad. Enlightenment is 
the aim of all penal study at the present day ; for, 
as New Hampshire's constitution of 1783 so quaintly 
suggests, the true design of all punishments is "to 
reform, not to exterminate mankind." 



Our fundamental law further forbids 
fines." One would think that a fine of twenty-nine 
million dollars, such as a United States judge lately 
imposed, was excessive, if excessiveness can be pred- 
icated at all. An appeal is pending from that fine ; 



64 IDEALS OF THE REPUBLIC 

and, of course, in any case " excessive " is a relative 
term and the wealth of the culprit should be con- 
sidered, as also the heinousness of the offence. But 
because Standard Oil magnates are rich and may 
have built up a business monopoly, through the long 
lapse of years, while ruining their competitors, are 
we justified in carrying such a penalty beyond the 
actual offence for which they are indicted and found 
guilty? Or can confiscation even of predatory 
wealth be lawfully upheld, to please the populace, 
because a guilty acceptance of railway rebates, 
shown in one course of dealing, is assumed by the 
judge who fixes the penalty to have been incident to 
other and earlier dealings? Nor is this the whole of 
it. The present fine is imposed, not upon the mag- 
nates, the directorate, alone, and still less upon single 
individuals of the management to whom guilt or a 
guilty knowledge is brought home, but upon the 
whole corporation of which they are members and 
managers — upon thousands of small stockholders 
and investors throughout the country, known to be 
innocent of wrong, as well as upon the few who have 
grown enormously rich in the concern. Can a corpo- 
ration, as such, be rightly regarded as a criminal? 
A fictitious criminal, it may be contended, commits 
but a fictitious crime. And is it not rather those 
directing operations who themselves commit the 
crime? It is true that they who hold shares are 
somewhat in the position of principals in a pursuit 
whose directors are their accredited agents, and 
hence might fairly lose proportionally as well as profit 
through their agents' discretionary conduct of the 
enterprise. And hence it might be said that other 
private parties, aggrieved in transactions with the 



CIVIL RIGHTS 65 

directors, should have just recourse against princi- 
pals, or at least be indemnified from the capital stock. 
But there can be no agency at law to do a private 
wrong, far less to commit a crime ; and bleeding all 
stockholders, upon a corporate indictment, because 
of the guilty misdeeds of certain of their number in 
authority, presents a new phase in criminal juris- 
prudence. More than this, creditors of the corpora- 
tion are thus struck at, if not the public, who may be 
left to indemnify from a rise in rates. Even if we ad- 
mit that government may fine thus wholesale, with- 
in fundamental law, and that for practical example 
it should choose such a course with rich corporations, 
such fines do not alleviate the distress of third per- 
sons who claim to have been wronged directly by the 
malefactions of a directorate; and hence huge sums 
procured by way of penal exaction and turned into 
the public treasury virtually donate to the whole 
people that recompense which should rather have 
gone to aggrieved individuals and may yet be 
specially sued for besides in the civil courts. 



Some of the safeguards which I have cited for a 
person's protection against public prosecution heed 
too much the individual and too little the general 
welfare. Justice should not be baffled. The true end 
of all criminal procedure is to protect the innocent, 
expose the guilty to righteous punishment, and con- 
serve the safety of society. Mr. Trevelyan, in his 
History of England under the Stuarts, writes of those 
times that " anxious lest the law should lose its 
terrors, the courts, with the approval of society, 
retained rules framed to secure the conviction of the 



66 IDEALS OF THE REPUBLIC 

guilty rather than the safety of the innocent." * 
Conviction of the guilty and the safety of the inno- 
cent should be objects coordinate and tantamount 
in government; but the fathers of our Republic, 
aiming their corrective chiefly to this latter end, may 
perhaps have too lightly regarded the former. For 
they themselves were as defendants, justifying their 
popular cause against a sovereign. While we now 
concede to the prisoner counsel and the fullest 
opportunity to confront accusing witnesses and to 
know the nature of the accusation brought against 
him, are we not too prompt and zealous in shielding 
him against the possibility of criminating himself? 
We have long boasted that it is better for nine guilty 
men to escape than that one innocent man should 
suffer; and yet I dare affirm that any judicial ad- 
ministration which suffers nine out of ten of its 
criminals to evade the penalty of their misdeeds 
must be grossly culpable in its duty towards society 
at large. Justice by all who are governed should be 
attempted, and such justice is impossible when we 
screen the guilty or refuse altogether to ask questions 
of a suspected person. The parent or school teacher 
who investigates an offence committed puts the 
child concerned upon inquiry; and we are taught to 
believe that at heaven's tribunal hereafter every one 
will be called to answer out of his own mouth for his 
course in life. Why, then, should so simple a process 
be thought inapt for the courts in human inquisition, 
where the interests of the community demand that 
the actual truth be ascertained? The man who 
knows whether he is guilty or not of an accusation is 
the prisoner at the bar; if innocent he can hardly 

'Sec. ii. 



CIVIL RIGHTS 67 

fail to establish his innocence by telling freely his own 
story; but if guilty, society gains rather than loses 
when a culprit stands revealed by his confession or by 
the grossness of his false denial. 

It was reaction against the torturing inquisition of 
darker centuries, with its rack and thumb-screw, or, 
perhaps, besides, the dread of political prosecution at 
the instance of our pre-determined monarch, that set 
our ancestors so strongly to contriving such con- 
straints upon the courts. For when America was 
first settled, a person arraigned for trial in England 
was examined by the court, and the examination, 
though confirming his guilt, if he were guilty, helped 
clear him if he was innocent. On the European 
continent, — in France and Germany for instance, — 
we find the older rule in accepted vogue to this day; 
and one who reads the ingenious detective stories of 
Gaboriau, sees French magistrates of expertness and 
integrity conducting a preliminary investigation, in 
cases of criminal arrest, whose result may be, where 
the prisoner explains the circumstances which 
brought him into suspicious relation with the crime 
committed, to set him free without publicity or 
formal trial. The shield which would here seem 
suitable and sufficient is that of immunity from 
prosecution or exposure for other offences which his 
testimony, frankly given, might establish against 
him, and his statement might be taken behind closed 
doors. 

In one respect the inaptness of our law, as favored 
at the outset in such connection, has been largely 
overcome. I refer to that old rule of evidence, 
whereby the prisoner arraigned was unable to testify 
even though he wished to, and where interested 



68 IDEALS OF THE REPUBLIC 

parties generally were excluded from the witness 
stand. How contrary to the true sequence of facts 
must have proceeded many a trial, in those times, 
when investigation had to reach conclusions wholly 
upon the drift of such testimony from outside as 
might portray the situation. I cannot forget the first 
case I ever conducted as a member of the bar, when, 
forty years ago, an humble but intelligent and 
thoroughly honest man, employed in a public office 
at a time of great pressure and distraction, was be- 
trayed by kind feeling though folly into helping some 
stray soldiers collect forged checks which he sup- 
posed were genuine. After they had vanished he was 
hauled before the court as the culprit, when only 
their credulous tool. His story, as he told it privately, 
satisfied his employer and all who knew him, that he 
was innocent of criminal intent, and had not appro- 
priated the money ; but to repeat that story before 
jury, judge, or magistrate, on his trial, was impossible, 
as the law then stood, while the production of wit- 
nesses on his behalf, except for good character and 
credibility, was equally out of the question. Nothing 
could counsel avail against incriminating facts, except 
to use his story as a sort of hypothesis in the closing 
argument and then appeal to the compassion of the 
jurymen. Two disagreements ended the case and 
saved the accused from imprisonment; he returned 
to his former post ; and society gained in him for 
the rest of his long life a useful member who lived 
down odium and gained withal in discretion. 

At this later day such a prisoner would be free to 
take the stand when he wished to do so; and I am 
well convinced that society is safer for the change. 
Nor as to the culprit whose heart tells him that he is 



CIVIL RIGHTS 69 

guilty of the charge for which he is placed on trial, do 
I feel the compassion of that argument, which con- 
servatism still sets up against the statute change, 
that condemnation might follow a prisoner's prudent 
silence. One need not, to be sure, take the stand, and 
a court may warn the jury not to allow their minds 
to be prejudiced because he fails to do so. But for 
my own part, I am willing that any jury should con- 
ceive a prejudice against a prisoner who remains 
mute. 

In a recent murder trial of great public interest the 
prisoner took full advantage of a statute which 
allowed him to put the whole cost of his counsel and 
witnesses upon the government; and this, with 
charges extraordinary for experts and counter- 
experts, imposed a heavy tax upon the county. In 
fact, the burdensome expense in these days of prose- 
cuting certain criminals, with its hazard of results, 
clogs justice often in many a rural venue, whose in- 
habitants are too poor to bear the weight. So 
common, too, has become the practice among de- 
fendants who can raise the funds, of carrying frivo- 
lous exceptions and appeals to higher tribunals that 
years may elapse before a criminal meets his just 
deserts, and the lesson of conviction will meanwhile 
be lost. 

All resistance unduly protracted is a public injury. 
The courts, more especially in our criminal ad- 
ministration, should be prompt, sure, irresistible; 
and they who bear the sword of justice should not 
bear it in vain. The safeguards of innocence are 
ample in any case ; and if clemency or pardon be fit 
for one adjudged guilty, the executive can intervene. 
Delayed trials, mistrials and new trials, appeals from 



70 IDEALS OF THE REPUBLIC 

State to the United States courts, political pressure 
upon President or Governor — all drive a crime- 
ridden community towards desperate measures. 
Greatly as we should condemn lynch law, there is 
this at least to be said for it : that it originates not so 
often in the spirit of wanton mischief as in the deep 
determination of a community to uphold the law's 
righteous penalty against criminal aggression, when 
courts and the civil authorities are thought too weak 
or too corrupt to fulfil their duty. It is, after all, 
local self-government maintaining itself turbulently, 
as in the days of our forefathers and the Stamp Act. 
And in trials by such lynchers or vigilance com- 
mittees, however summary may be their infliction, it 
has almost invariably proved that the person 
arraigned has found a tongue to give convincing 
proof of his guilt or innocence, and that, if really 
innocent, he escapes the threatened punishment. 



CHAPTER IV 

POLITICAL RIGHTS 

TO consider now one's political rights in 
organized society. The distinction of 
civil and political rights cannot be pre- 
cisely applied or insisted upon, since the maxims of 
government blend somewhat in force and expression 
without preserving a clear difference. Yet there is 
a difference and we may thus undertake to define it : 
civil rights proper consist of the fundamental rights 
of human nature as applied in organized society or a 
commonwealth ; while political rights are such rather 
as the commonwealth or sovereignty chooses to con- 
fer by lawful enactment upon all or certain of its in- 
habitants by way of a direct participation in the 
conduct of the government. Thus, whatever con- 
cerns one's rightful immunity and protection in 
respect of life, liberty or property within the juris- 
diction is a civil right ; while the right to vote or hold 
public office is purely political and liable under any 
government to qualification in respect of the inhabi- 
tants. 

And yet with us of America, such a distinction be- 
comes obscured by the fact that sovereignty itself is 
derived from the whole people; and hence some 
would broaden the term " American citizen " so as to 
signify one of our sovereign people, — a constituent 



72 IDEALS OF THE REPUBLIC 

member of the sovereignty which is synonymous 
with the people. Yet " citizen," in its literal sense, 
has a more technical and political application, as 
meaning only those native-born or naturalized among 
the people, including men, women and children; 
while, as I have contended, rights purely civil are 
generously extended by our fundamental law so as to 
comprehend " all persons " or " the people." Not so, 
however, with purely political rights, which to this 
day apply with admitted qualifications and cannot be 
extended in any jurisdiction without some constitu- 
tional change or a valid act of the legislature. 



To take the term " citizen " in its most appropri- 
ate political aspect, the application is a limited one. 
Citizens of the United States are citizens, besides, of 
the State in which they reside ; and before the con- 
stitution of the United States was adopted at all, 
each State independently had the right to make 
citizens of such persons as it pleased. Something of 
a privilege attaches universally to the condition of 
citizenship. "All persons born or naturalized in the 
United States, and subject to the jurisdiction there- 
of " is now the fundamental condition of American 
citizenship; and, although the accident of native 
birth should fulfil that condition with a vast num- 
ber of our inhabitants, those foreign-born become 
citizens only through the process of naturalization. 
Our naturalization laws, moreover, may vary from 
time to time, at the discretion of Congress, in making 
a probationary residence longer or shorter, or by 
imposing other special conditions. With the latter 
class of inhabitants, at all events, citizenship is seen 



POLITICAL RIGHTS 73 

to be something of a political privilege or boon be- 
stowed by government ; and such has been the funda- 
mental theory of all citizenship. But accepting the 
difficulty of defining closely what constitutes citizen- 
ship in a republic, our courts have sometimes held 
that a person may be a citizen for certain purposes 
and yet not so for others. 

First, and most emphatically, we realize the full 
significance of citizenship in our international con- 
troversies. Here only the real citizen of a country 
can demand and rightfully expect the intervention of 
its government on his behalf, to protect him against 
another government for infraction of his rights in 
life, liberty or property. For that civil protection 
which the United States so amply guarantees to " all 
persons " or " the people " — regardless, it may be, 
of a strict citizenship — is presumably confined to its 
domestic jurisdiction. And, corresponding every- 
where to the right of international solicitude which a 
full citizen may properly expect, his first and most 
comprehensive duty is loyalty or allegiance to his 
own government. Every one born into the world is 
regarded as a subject or citizen of some government, 
as well as domiciled somewhere; and the presump- 
tion arises that each of us owes loyalty or allegiance 
to the government within whose jurisdiction he was 
born. In former eras so strongly was such a pre- 
sumption insisted upon, under the law of nations, 
that each European sovereignty treated all those 
born under its flag and dominion as bound to a life- 
long allegiance, regardless of all personal change of 
residence or of actual intent to expatriate one's self; 
but this rule weakened in force with the increasing 
settlement of a new continent and the emigration 



74 IDEALS OF THE REPUBLIC 

from old-world countries of men seeking to found 
here new homes and new institutions. 

As colonists restive and rebellious against the rule 
of the mother country, America's leaders of the 
eighteenth century contended that the old doctrine 
of a perpetual allegiance due by the mere accident of 
birth was slavish and absurd, and that something 
was in reason due to one's own voluntary choice of a 
home and country. Great Britain held in those days 
to the contrary; and only her recognition of the 
United States as an independent people after we had 
fought and conquered gave us before the world a 
place in the family of nations and the indisputable 
title to a new and transferred allegiance. Even 
then England maintained her claim of a right to 
search and to impress her native seamen; and a 
second war growing out of our resistance to such an 
assumption and its offensive exercise, that secondary 
claim was put finally to rest only by England's silent 
cessation to search or impress where our flag pro- 
tected on sea or land, leaving new and enlightened 
influences to work out later a practical extinction. 
Individuals are found to-day free to change both 
domicile and citizenship to a considerable extent and 
to assume at will new duties of loyalty and allegiance 
with a transfer of abode, repudiating all obligations 
to the government beneath whose flag and sov- 
ereignty they happened to be born, and adopting 
by deliberate choice new ties and a new national 
relation. Laws and treaties work out such interna- 
tional results harmoniously. 

But in this broad relation of citizen or subject, 
one claims political rights and immunities from his 



POLITICAL RIGHTS 75 

government in return for his bounden duty of 
service in allegiance. And among such rights and 
immunities we may fairly class as political, con- 
sidering their scope, our constitutional prohibition to 
Congress from " abridging the freedom of speech or 
of the press, or the right of the people peaceably to 
assemble, and to petition the government for a re- 
dress of grievances." 

Freedom of speech or of the press, — freedom to 
criticize with honest candor the operations of state 
and the conduct of those at the head of affairs — has 
proved a salutary blessing. How great our liberty in 
that respect is seen even at this late day, when we 
find autocratic Russia, forced by her own necessities 
to yield somewhat to the people in that direction. 
Our early colonial newspapers were sometimes 
suppressed or disciplined by royal governors, in order 
to keep down all adverse comment upon the course 
of rulers; and men were arrested and thrown into 
jail for speaking or printing their own opinions upon 
issues of the day. Even freedom of speech in a 
legislature had hardly been tolerated; and hence, 
following English legislation in 1689 on behalf of 
Parliament, Maryland pressed early in her Declara- 
tion of Rights (1776) the immunity of representatives 
in that respect. And so, later, with our other States. 
In published writings, the old common law of libel 
was a hindrance of popular censure ; for the greater 
the truth, as paradoxically expounded, the greater 
the libel ; and of all libels, that upon the public and 
public officials has ever been the most stigmatized. 
But early in the nineteenth century, New York and 
other leading States instituted that admirable 
change which allowed truth as to alleged facts an 



76 IDEALS OF THE REPUBLIC 

admissible defence in libel suits. Malicious motive, 
however, as among individuals, or the wanton pur- 
pose of breaking down legitimate authority and 
fostering anarchy and disorder, qualify the right of 
free speech or a free press in every age or country. 

The right of the people peaceably to assemble, 
and to petition the government for a redress of 
grievances, is a political right which rulers must re- 
gard. A combined assertion of popular rights on 
occasion, or a combined opposition to particular 
public measures, must ever be more formidable and 
impressive than that of scattered individuals. To 
such an assembling of minorities as well as of the 
majority, whether under party auspices or other- 
wise, this country has been long accustomed. But 
the right as here expressed is freely accorded to 
peaceable assemblies alone and to respectful ad- 
dresses made to the government. No threatening 
demonstration, no offered violence to authorities at 
the capital, is here upheld or justified ; nor can the 
marching of a mob be tolerated to overawe and in- 
timidate, — as where mutineers from our Revolu- 
tionary army once threatened the Continental Con- 
gress at Philadelphia, demanding their pay. To 
petition, moreover, is not to demand, but to ask 
deferentially. With the right to peaceably assemble 
goes that of instructing representatives and consult- 
ing together upon the common good. 

Such fundamental prohibitions under our Federal 
constitution, as amended, followed a rule already 
declared in separate State jurisdictions. In the by- 
gone era of anti-slavery agitation, John Quincy 
Adams, while serving in his old age at Washington in 
the House of Representatives, contended most 



POLITICAL RIGHTS 77 

forcibly for the people's right of petition to Congress, 
even though it were to the extent of praying respect- 
fully for a peaceable dissolution of the Union. 



Local self-government, under the autonomy of 
States, is a constitutional right still cherished. 
Hence the preference shown in all our fundamental 
instruments for local police and a local militia to 
maintain domestic order, rather than for standing 
armies of the whole nation. Such preferences hold 
fairly to this day, under the Federal Constitution 
itself, notwithstanding the immense prestige gained 
historically by the army and navy of the Union. So, 
too, a volunteer soldiery, rather than that of con- 
scripts, has been our main and usual reliance. 

The offence of attempting to overthrow the gov- 
ernment to whom one owes allegiance as citizen or 
subject is treason ; and the treatment of treason or 
" high treason," as a crime, has changed much in the 
course of centuries. What one denounces as treason, 
at some historical crisis, another glories in as exalted 
patriotism. " Rebellion against tyrants," to cite 
John Bradshaw's epitaph, " is obedience to God." 
In European countries treason was long regarded 
from the standpoint of disloyalty to the person of the 
ruler, and kings or high nobles wreaked vengeance 
upon some recreant follower as a traitor, less from 
regard to the public injury than their own offended 
dignity. But with us of America, personal considera- 
tions of sovereignty carry little weight. The office, 
not the man, is supremely sacred ; no one rules but in 
the name and at the behest of the governed under its 
legitimate sanction. Hence treason here, as a crime, 



78 IDEALS OF THE REPUBLIC 

is regarded rather as an offence against the whole 
people, against the republic, against the general 
safety, than against the chief magistrate who happens 
at the time to be vested with delegated authority; 
nor can constructive treason on doubtful grounds 
be set up by any one in official station to gratify a 
personal revenge. Bills of attainder are forbidden. 
Each person accused must be judicially tried under 
the law's favoring requirements as to the evidence of 
his guilt. There may be treason against a State or 
treason against the United States; but the test 
comes mostly to a national criterion. Treason, as 
against the Union, is defined as consisting not in 
mere conspiracy but only in levying actual war or 
adhering to enemies. Nor can punishment for such 
treason carry corruption of blood, so as to extend the 
penalty to innocent offspring. Yet, whatever may 
be the justice or injustice of a cause which leads men 
to rise against legitimate government, success alone 
can relieve them from the stigma of traitors or from a 
criminal liability within the limits I have stated, 
short of sovereign clemency. 

The criminal offence of treason, though heinous 
surely under a clear condition of facts, is one of the 
most difficult to calmly adjudicate or discern in any 
body politic. Judges themselves, however carefully 
selected, are susceptible, like the rest of us, to 
political bias; and so, most emphatically, must be 
juries composed of rational and intelligent citizens 
who keep in touch with passing politics. King Log 
alone in such a controversy might administer justice 
dispassionately. 

The excesses committed in England during the 
period of her Commonwealth and under the two 



POLITICAL RIGHTS 79 

reactionary reigns which followed, were not witnessed 
greatly when our own Civil War ended, forty years 
and more ago. Summary retribution was, indeed, 
visited upon conspirators implicated in President 
Lincoln's assassination, and had not a court martial 
been resorted to, — possibly without strict warrant 
of law, — so as to deprive such prisoners of a jury 
trial under the usual safeguards, the punishment 
imposed could never have been inflicted. With a 
few such vindictive examples, however, the victors' 
glut for revenge was satisfied. All attempt to de- 
prive the Lee inheritors of their Arlington estate, by 
converting that home into a soldiers' cemetery, 
ended in a national purchase to clear the title. The 
court-martial of civilians ceased in normal juris- 
dictions ; our supreme court sustaining each individ- 
ual of a pacified union in his constitutional rights. 
And though some leaders and promoters of the 
vanquished Confederacy were for a time imprisoned, 
all prosecutions for treason dropped without reach- 
ing a trial and all deprived of liberty soon went free. 
A generous amnesty was extended. " Do not try 
Jefferson Davis by a court-martial, but, if at all, in 
the regular way," was the early advice given Presi- 
dent Johnson in 1865 by a party adviser. And we 
see among that President's posthumous manu- 
scripts now in the Library of Congress, a letter 
received, that year, from a venerable Whig of by-gone 
days, 1 once in Zachary Taylor's cabinet, which urged 
the liberal bestowal of pardons upon leaders like 
Stephens, Campbell and Benjamin H. Hill; and that 
the manacles of the Southern Confederacy's late 
President be taken off. ' ' These incidents, ' ' he added, 
M belong to history." 

1 Hon. Thomas E-wing of Ohio. 



80 IDEALS OF THE REPUBLIC 

So much, then, for the political rights of an Ameri- 
can simply as a citizen or subject under govern- 
ment, as our fundamental law regards them. Those 
political rights which involve, besides, a respon- 
sible participation in affairs consist mainly in (i) the 
right to hold office, and (2) the right to vote. In the 
former respect, our commonwealths reached largely 
their several standards in colonial times; yet, save 
for the mere town and county offices, with a repre- 
sentative, besides, in some colonial House of Com- 
mons, the honor and emoluments of public station 
were mostly in that era the gift of the Crown. They 
whom England sent over to govern our several 
colonies varied greatly in merit and character, as 
rulers always will in the administration of distant de- 
pendencies. Some were in touch with colonial 
sentiment; more were not. Some showed them- 
selves worthy of their selection, while others proved 
profligate or incapable, — the castaways of influ- 
ential families in the mother country bound to 
provide them a living. Under no system of paternal 
rule may we expect high effort from exiles of the 
home dominion; they take no profound interest in 
their immediate work or surroundings; they come 
and they go, and the best of such foreign endeavor 
will scarcely better the selection or restrain incum- 
bents from vice and peculation. For good govern- 
ment is the natural product of the vicinage — of 
local ambitions, local family ties, the local wish of 
the individual placed in authority to serve his 
neighbors, his equals, his fellow-citizens. 

The American idea, rooted in Revolution, identifies 
public office closely with devotion to the public 
welfare, and the people are pronounced the true 



POLITICAL RIGHTS 81 

source of patronage. Our Federal constitution, 
while requiring all high officers or legislators to take 
oath or affirmation to support this instrument, 
ignores religious tests for office, and all former 
qualifications of property. It was a great advance on 
former example, and such has now become the 
general rule for state as well as nation. But con- 
cerning other qualifications for office-holding, some 
prohibitions have always been imposed and still apply. 
Thus, to this day, we find high stations to which no 
one is eligible at all until a stated age is reached, 
later than a mere majority, so as to give assurance 
to the people that his capacity has ripened by ex- 
perience. 1 Length of local residence affords another 
test of the right to be chosen or appointed to repre- 
sent in certain cases. And, moreover, one cannot be 
President of the United States, nor even a governor 
as some States set the rule, unless native born, and 
resident besides for a specified time. 

Rotation in office is procured by fundamental pro- 
visions which prescribe the length of an official term 
and declare the incumbent ineligible after a certain 
period. Re-eligibility as governor was restrained 
under several State instruments of early date; yet 
only partially, and so that one might be re-elected for 
a certain number of terms out of some longer spe- 
cific period, or else after the expiration of some stated 
years in retirement. Provisions making one abso- 
lutely ineligible, apart from such restrictions, are 
abnormal in our system if they exist at all. For a 
President of the United States, as we all know, long 

1 For instance, our Federal constitution makes ineligible to Congress 
as a Representative one less than twenty-five years of age ; or as a Sen- 
ator one under thirty ; and no one can lawfully be chosen President of 
the United States before reaching the age of thirty-five. 



82 IDEALS OF THE REPUBLIC 

custom alone fixes the final limit of successive terms. 
And on the whole, a governor's official tenure is 
longer usually, at the present day, than it was when 
our thirteen States declared their independence, and 
annual elections were the custom. 



I come now to the right of suffrage, which, in 
most respects, is left wholly to separate State dis- 
cretion. Of all political rights or duties inherent in 
a free people, that of voting is the most sacred, 
comprehensive and fundamental. " All elections 
ought to be free; " and under our American system 
this right of electing applies most liberally. While, 
at the outset of independence, property requirements 
of some sort limited almost everywhere the right to 
vote, the rule is now that, whether taxed or untaxed, 
whether rich or poor, whether high or low, the equal 
poll of an adult citizen and resident must be respected. 
Nor do religious views affect the right as formerly. 
There are States which give the ballot to women ; and 
even genuine residents of foreign birth not yet fully 
naturalized are qualified under some local laws. 
Special discriminations, however, we find separately 
ordained. Thus, in Massachusetts, illiteracy dis- 
qualifies ; and such a test when fairly and accurately 
applied seems not unfair in any commonwealth which 
gives education freely and encourages every one to 
read and write. Those convicted of such infamous 
crimes as bribery or false personation are also for- 
bidden to vote, and disfranchisement may extend 
even to those innocent enough, who are kept at 
asylums or prisons at the public cost and hence are 
not self-respecting and independent. 



POLITICAL RIGHTS 83 

Aside from racial troubles which I shall not here 
touch upon, the severest test upon broad manhood 
suffrage, for the taxed and untaxed alike, comes in 
those conglomerate centres of to-day whither swarm 
so many of the ignorant, idle and shiftless, whose 
ballots, when cunningly combined, may outnumber 
those cast by their intelligent and responsible fellow- 
citizens who have a direct stake in the wise and 
economical administration of affairs. For the un- 
taxed in our great cities greatly outnumber the tax- 
paying inhabitants. This is a practical difficulty to 
which practical citizens are now giving attention 
and of which I shall discourse in a later chapter. 
Rich and poor will generally cooperate as equally 
good citizens when the local public spirit is aroused ; 
and if each civic treasury should be guarded against 
the sturdy beggars who crowd at the spigot, even 
more must it withstand those prowling promoters of 
predatory schemes who assault the bung-hole. We 
must still stand to the end, I presume, upon liberal 
self-government and voting by the peopl?. Even in 
a business corporation, the law does not undertake 
that each stockholder shall cast a single vote and no 
more, simply because he is a stockholder, and were 
resident tax-payers alone to poll ballots in our cities 
voters would not logically stand alike in their suffrage 
and the non-resident who is taxed on local real estate 
might well complain of his utter exclusion. 

In the public opportunities for exercising a choice, 
our elective franchise has made great progress since 
this government began. Local self-government is 
still secure, and more than ever do local incumbents, 
town, county and even State, hold title as the gift of 
the people. Instead, too, of choosing members of a 



84 IDEALS OF THE REPUBLIC 

single representative assembly, as formerly, the 
mass of voters in each State become electors, on a 
census rule by numbers, to both Senate and House 
of Representatives. The march of our democracy 
to power proves thus far irresistible, and the home 
government which now impends in the world's 
progress is that of an honest and intelligent public 
opinion, guided by facts and argument. This is 
the government, and the only kind, worth living 
under, so long as class tyranny of every kind can be 
kept down 



But a government which yields to popular 
direction no more than the choice among representa- 
tive candidates must be after all an imperfect one, 
even when candidates themselves — as seldom hap- 
pens — are brought freely forward by the people at 
their own instance. The time, I trust, approaches 
when a highly patriotic and intelligent people may 
well demand their own more immediate participation 
in affairs. And in the people's initiative or referen- 
dum looms up for the future an engine for popular 
rule of splendid possibilities. Local statutes have, 
of late, in various scattered instances, been referred 
to a popular vote for final sanction. A special 
referendum long ago availed in the States where a 
new constitution or a constitutional amendment was 
submitted to the voters for approval and adopted 
upon their suffrage ; and in many such instruments, 
for more than half a century, the legislature itself, 
with the people's agents in other branches of the 
government, is fundamentally constrained in the 
abuse of power. Hence a referendum of regular 



POLITICAL RIGHTS 85 

establishment is no pure novelty in State govern- 
ment. Initiative by the people is also practicable; 
and this should mean something more than a mere 
petition to representatives. But for referendum or 
initiative nationally applied the conditions are un- 
favorable. 

In these days we worship no human ruler; we 
believe in our own capacity to direct affairs. Though 
adaptation of New England's town meeting to large 
cities and commonwealths has been thought im- 
practicable — and I myself think it quite unfitted to 
this Union at large — something of its methods and 
basic idea may be found to consist with an expansive 
experiment in democracy like ours by the time that 
the great mass of society are well grounded and 
assured in those elementary principles that make 
civil government a common concern. Only arouse 
an intelligent community to its pressing needs, even 
now, and the situation is well handled. To expert 
knowledge a whole people cannot lay claim; the 
capacity to administer well may belong to but few 
comparatively among us; yet virtue and high pur- 
pose go with the common sense, to supervise and 
hold all chief officials to right conduct and to estab- 
lish the policy desirable. 



Finally, we should not omit religion, in enumerat- 
ing the rights of mankind for which the founders of 
our republic contended. This may be pronounced a 
natural right, so far as concerns one's private wor- 
ship of the Almighty; or a civil right, when viewed 
in the social aspect of church fellowship and com- 
munion; or once more, a political right, from the 



86 IDEALS OF THE REPUBLIC 

standpoint of a state establishment or when con- 
sidering such religious tests as we formerly applied 
to office-holding and the right to vote. 

The two great reforms in which the United States 
has here set an example to the world are: (i) in 
tolerating all religious sects and denominations and 
in conceding to every one the right to worship accord- 
ing to the dictate of conscience; (2) in prohibiting 
public establishments of religion and remitting all 
sects, all churches alike, to the voluntary support of 
adherents. How novel still in the world's experience 
is this latter change we are reminded, at this day, by 
seeing the French Republic enter with difficulty upon 
a like experiment, while Europe views largely the 
innovation with anxious distrust. As to ourselves, 
religion has not suffered from disunion, or rather 
the non-union, of church and state, for in the stimu- 
lated exertion of proselyting sects, all legally alike, 
gifts and individual efforts of the faithful have 
stirred an increasing activity such as no tax-sup- 
ported establishment could probably have afforded. 
The danger lies, perhaps, in secularizing too greatly 
the education of the young — school and home each 
shirking its initial responsibility in that respect. 
Yet America, despite those heterogeneous foreign 
elements which have joined her original population, 
lieeds still the Christian character of her settlement. 
To turn back in our religious policy and cease to 
tolerate, seems impossible. To tolerate is not nec- 
essarily to become apostate ourselves. We must go 
forward and look forward, and our hope should be 
that freedom in religion, or even in non-religion, will 
lead ultimately to sound and firm convictions in the 
best religion. We tolerate; but where imposture 



POLITICAL RIGHTS 87 

pretends to religion we may well demur; and any 
establishment which, like Mormonism, has sought 
to make a religion of immoral practices or to con- 
trol civil affairs by a hierarchy hostile to republican 
institutions, is liable to repression. No one exercise 
of religion should be permitted to interfere with 
other rights of exercise in the community. 



CHAPTER V 

GOVERNMENT BY CONSENT 

THE fundamental basis upon which should 
rest the fabric of human authority in any 
land is, in our American conception, the 
free consent of the governed. And proceeding from 
its postulate of the equal creation of mankind, and 
of the equal endowment of " unalienable rights " 
by the Creator, our Declaration of 1776 next asserts 
that " to secure these rights governments are in- 
stituted among men, deriving their just powers from 
the consent of the governed." 

Governments are many on this earth and inde- 
pendent; and when we consider all the types and 
varieties of the human race, we cannot conclude it 
possible or even desirable for man's advancement 
that one political jurisdiction should embrace and 
monopolize or even give the pattern to all earthly 
authority. God's will alone asserts a rightful domin- 
ion over the world, and, whenever that will controls 
finally by the consent of all mankind, human govern- 
ment need exist no longer. For law itself is but a 
schoolmaster, and the perfect law is liberty. From 
such a point of view, is there anything in human 
sovereignty which should call forth a blind idolatry 
or the self-immolation of those who live under it? 
Pomps, triumphal processions, overbear the public 
mind. Government is, most of all, designed as a 



GOVERNMENT BY CONSENT 89 

means of security to the inhabitants. Its first and 
fundamental purpose is, when individuals mingle 
together in society as mutual tastes and inclinations 
lead them to do, to safeguard the rights of each and 
all of them. For fostering industrial pursuits, 
developing wealth, promoting the arts and what we 
call civilization; for establishing wise institutions 
in religion, learning and philanthropy, and for 
increasing the welfare and happiness of the general 
mass, government operation is but secondary. 
Citizens naturally take the initiative themselves in 
such matters. Society should, in as free and un- 
fettered intercourse as possible, shape out its own 
essential ends, each inhabitant pursuing his personal 
career; and wherever government intervenes to 
direct and promote, it should be heedful to do so 
without favoritism or partiality. Government col- 
lects an annual revenue for the public needs and 
spends it annually: it seldom carries on a business. 
In short, as America views the true function of 
such establishment, a state should be rich only in 
the aggregate wealth of inhabitants who have fairly 
availed themselves of its liberal opportunities; it 
should be strong chiefly in the high intelligence, 
health and virtue of those who grow up therein 
with hearts devoted to its defence and maintenance. 
Better than all fleets and standing armies, for internal 
discipline or for defiance of foreign foes, the love 
of country, inspired by equal laws, makes and 
keeps that country safe. 

■ Each government originates justly in a fundamen- 
tal compact of some kind, involving the mutual 
consent of those subjecting themselves to its direc- 
tion. The idea of government by consent is a great 



90 IDEALS OF THE REPUBLIC 

advance upon that older theory of government by 
the coercive authority of a few privileged and power- 
ful men. But inasmuch as social unanimity in a 
compact of government must be found impracticable, 
the consent of the greater part, or a majority, may 
properly bind the rest to such an institution, and to 
details and methods; unless, at all events, they 
who are dissatisfied withdraw promptly from the 
new jurisdiction and remain outside, in token of 
their positive dissent or refusal to part with their 
original liberty on such terms. Remaining, they 
should yield to the majority or persuade others until 
they themselves have gained the majority. 

A commonwealth or state has been well defined 
as a body politic or civil society of men, united 
together to promote their mutual safety and pros- 
perity by means of their union. 1 And the constitu- 
tion of our United States, which was framed and 
adopted by way of a solemn compact and ordinance 
both of the several States and of the people composing 
them, thus sets forth in its preamble the proper 
basic objects of a political union: "to establish 
justice, insure domestic tranquillity, provide for 
the common defence, promote the general welfare, 
and secure the blessings of liberty to ourselves and 
our posterity." Such are and should always be the 
prime objects proposed whenever men come together 
to form a new or a more perfect body politic. And 
it is a wise preliminary to all ordained government 
by compact, that the instrument itself, as drawn out 
in detail, by representatives of the people who first 
assemble in convention to frame it, should not only 
be signed on behalf of constituents by those em- 

1 Boston Resolutions 1772, citing Locke and Vattel. 



GOVERNMENT BY CONSENT 91 

powered to act in the premises, but should after- 
wards be submitted in the text for adoption to the 
constituencies themselves or to conventions or 
legislatures duly authorized. This was done with 
the constitution of the United States and with the 
best of our written State constitutions. 



As to what John Locke in his treatise on 
civil government terms " political power " — or 
where each member " hath quitted natural power, 
resigned it up into the hands of the community in 
all cases that exclude him not from appealing for 
protection to the law established by it" — such 
society, he argues, is instituted to carry out the idea 
for a commonwealth which man naturally under- 
takes for himself, but is not competent to execute 
as numbers increase. For man's individual birth- 
right is the inherent power to preserve his life, liberty 
and estate ' ' against all injury and the attempts of 
all other men, and to punish violators; while 
political society carries out the same idea for a 
state." ■ 

No sovereign authority over the lives and fortunes 
of a people can ever gain a rightful sway or progres- 
sion except through the voluntary acquiescence and 
consent of a people, tacit if not expressed, and under 
circumstances which evince a continuous and orderly 
establishment. No collective society can cohere 
without government, without a public supervision of 
some sort, without an individual submission to laws 
and an organized supremacy. Yet ' ' all government , ' ' 
to quote from Maryland's Revolutionary declara- 

1 Locke § 124. 



92 IDEALS OF THE REPUBLIC 

tion, " originates of right from the people and is 
founded in compact only." And the Massachusetts 
constitution of 1780 elaborates the argument in 
its preamble: "The end of all government is the 
benefit of the body politic; and the body politic is 
formed by the voluntary association of individuals: 
it is a social compact, by which the whole people 
covenants with each citizen and each citizen with 
the whole people, that all shall be governed by 
certain laws for the common good." 

When men thus voluntarily enter into political 
society, they have a right to prescribe their own 
fundamental terms and conditions. 1 But the liberty 
of men under government becomes a modified one; 
their freedom here is to have a standing rule to live 
by, common to every one in that society and duly 
made and duly enforced by the sovereign authority 
therein erected — "a liberty," says Locke, "in all 
matters where the rule prescribes not." 2 Further- 
more, by implication if not expressly, one's own 
right, particularly in property or personal relation, 
is here harmonized by intent with the rights of all 
others embraced under the compact; and hence 
each consents to a judge or arbiter of rights as 
between himself and his fellow-members of the 
jurisdiction. But one does not thereby renounce 
altogether his original and inherent rights, nor sur- 
render himself abjectly to arbitrary rule. 3 Any 
such claim would be absurd ; since the chief end of 
government is to support, protect and defend those 
very rights. 4 Some of our Revolutionary fathers 

1 Boston Resolutions 1772. 

* Locke § 22. 

3 Boston Resolutions 1772. * lb. 



GOVERNMENT BY CONSENT 93 

contended at the outset that man could not validly 
renounce such rights, inasmuch as they are the gift 
of God; but perhaps it is enough to say that, 
alienable or unalienable, no such intended renuncia- 
tion can be inferred upon doubtful evidence of one's 
intent. 

In short, to quote the Boston Resolutions of 1772, 
" the natural liberty of man by entering into [politi- 
cal] society is abridged or restrained so far as is 
necessary for the great end of society — the best 
good of the whole." Many in later times have 
tortured such an expression into that smoother 
phrase — alliterative but deceitful — " the greatest 
good of the greatest number." This is a fallacy. 
Government does not exist for the special welfare 
of a number only of its inhabitants — not even for 
that of a majority or any other predominant part — 
not, most assuredly, as some citizens would have it, 
for the peculiar benefit of themselves or of their 
particular set or political party, — but its great end 
is " the best good of the whole." And such is the 
real meaning of that grand old English word " com- 
monwealth." 

The government which men thus enter into, 
knowingly and voluntarily, with no fraud, violence 
or surprise, but by way of solemn explicit and 
deliberate compact with each other, they form, not 
for themselves alone nor temporarily, but — subject to 
such later changes as may on occasion, be fitly made 
— for themselves, their families and their posterity. 
Their compact — somewhat like that of a man and 
woman uniting in marriage — admits them to a 
status whose sacred essentials are meant to include 
the prospective rights and interests of others yet 



94 IDEALS OF THE REPUBLIC 

unborn. Permanency is intended. The design is 
not the good of the framers alone but the good of 
posterity of a whole community for generations to 
come. Hence, as Locke concludes, the power that 
every individual gave the society when he entered 
into it can never revert to that individual again as 
long as the society lasts, but will remain in the 
community. 1 



" The world is too much governed " was a 
favorite postulate of Jefferson and our democracy 
when the nineteenth century opened. But some 
of the prophets and preachers of 1776, in their 
hatred of monarchy and old-world oppressors, had 
been inclined to belittle the functions of government 
more perhaps than in our own times would seem 
fair. Thomas Paine, English by birth, who was 
hardly an American at all save while he tarried 
among us, but rather a man without a country, and 
in his prime the alien instigator of revolutions, 
American and European, drew in his famous pam- 
phlet a distinction somewhat fanciful between 
society and government. " Society," he contends, 
" is produced by our wants and government by 
our wickedness ; the former promotes our happiness 
positively by uniting our affections, the latter nega- 
tively by restraining our vices. . . . The first is a 
patron, the last a punisher. . . . Society in every state 
is a blessing, but government even in its best state 
is a necessary evil." With more caustic denuncia- 
tion I have heard an orator of my own day, a master 
of invective, proclaim that " government is a nui- 

1 Locke, § 243. 



GOVERNMENT BY CONSENT 95 

sance." But when, we may ask, could human society, 
in any age or clime, maintain intercourse happily 
without laws and a controlling power of some kind? 
Two men come together as neighbors, each of whom 
wishes to appropriate the same piece of land, the 
same cattle; both desire passionately the same 
woman in companionship. If two individuals can- 
not long associate without clashing in their natural 
wants and wishes, still less can they who mingle in 
such numbers as to form a real society of mankind, 
with an increasing population. Society, then, does 
not stop at the point of blessing us, of promoting our 
happiness as a patron ; nor is government the mere 
restrainer of vice, a punisher. The anarchist who 
hurls his bomb or fires his dastardly shot at one 
unarmed, unguarded and unconscious of danger, 
promises to society not order but disorder, — and 
as the robber of other men's rights he would assert 
a despotism of his own, fierce and mischievous. 
This is not brotherhood. Only the rule that merges 
in universal obedience to law and a willing com- 
pliance with right and justice towards all, so as to 
need no compulsory enforcement, can leave society 
on that safe plane of lasting peace and blessedness 
which it never yet approached in the world's annals. 
And meanwhile, civilized government as a punisher, 
as the repressor of criminals and a terror to evil 
doers, exercises but one of its prime functions, and 
while it scourges as of necessity a small percentage 
of the inhabitants, it secures the lives, liberty and 
property of all the rest. Besides this, government 
is arbiter and assuager among the constant civil 
controversies that arise among its inhabitants, in 
their domestic relations, in their business, in all 



96 IDEALS OF THE REPUBLIC 

those innumerable interests into which their lives 
are woven, involving, it may be, the most delicate 
and intricate combination of rights and the happi- 
ness or misery of millions of the human race. Nor 
should the combined interests of a body politic as 
against foes or aggressions foreign and external be 
overlooked. In short, government is at home a 
protector and more or less directly an essential 
promoter of individual tranquillity and happiness, 
while as against the rest of mankind it offers the 
sure, the only sure, earthly defence. 



Indeed, our great fundamentals of temporal 
polity are comprised in the golden rule, and inspired 
by the Christian religion. Each commonwealth has 
in turn recognized in its origin the fatherhood of 
God and the brotherhood of man. A recent writer, 1 
American-born but long a dweller abroad, lamented 
in old age his lapse into religious unbelief, and the 
loss of his peace of mind, ever since Darwinism and 
the announcements of modern science made him a 
skeptic. Against that inspiring phrase of 1776 that 
" all men are created equal," he compares the duller 
one of later vogue that " all men are born equal." 
Yet that change of phrase was set forth during our 
Revolution and did not originate in atheism. We 
find it in that Massachusetts declaration which 
changed the diction of 1776, while retaining the 
sense. " All men are born free and equal " is here 
the expression. But following this statement, 
with its instance of rights " natural, essential and 
unalienable," comes the reverent assertion that 

1 Moncure P. Conway (Reminiscences). 



GOVERNMENT BY CONSENT 97 

"it is the right as well as the duty of all men in 
society, publicly and at stated seasons, to worship 
the Supreme Being, the great Creator and Preserver 
of the universe." So, too, at the outset, this docu- 
ment gives grateful thanks for God's goodness and 
implores His direction in the present design. 1 

It was in France, some ten years later, that a 
tremendous tide of popular passion, mingled with 
cynicism, swept away for awhile the old barriers 
of belief, enthroned the goddess Reason, and set 
forth the so-called rights of man, as though of 
earthly origin. " Men are born and always continue 
free and equal in respect of their rights " proclaimed 
the French National Assembly; " the nation is essen- 
tially the source of sovereignty." But the pillars 
of a republic dedicated to man's self-sufficiency sank 
soon into the quicksands on which they were founded 
and the superstructure lapsed. France is saner and 
more reverent with her present experiment. Rous- 
seau's marble effigy before the Pantheon still com- 
memorates in Paris the social contract idea to which 
his writings gave expression ; but Rousseau was born 
eight years after the death of John Locke and hence 
was but a disciple in this new philosophy of govern- 
ment. Whatever has remained soundest and strongest 
in the republican establishment of France drew its 
inspiration from American independence, whose 
cause Lafayette had befriended and a French 
monarch besides. 

Much of the doctrine we derive from the Bible 

1 The old constitution of Pennsylvania in like manner announced 
that " all men are born equally free and independent ;" while that of Vir- 
ginia stated that men are " by nature " free and independent. Both of 
these constitutions invoked God's guidance in framing the ordinance 
and used other reverent expressions. 



98 IDEALS OF THE REPUBLIC 

comes less from its literal text than from a customary 
interpretation put upon that text which may admit 
of change. The Mosaic account of this world's 
creation is not irreconcilable with the Darwinian 
theory. It does not assert, as so many of us have 
assumed, that this whole human species was derived 
from a single pair who fell from innocence; for in 
the first chapter of Genesis is the express statement 
that God created man in His own image; "male 
and female created He them," and sent them forth 
to be fruitful and multiply, to replenish the earth 
and subdue it. And the first-born of Adam and 
Eve, when cursed as his brother's murderer, is seen 
wandering from home, to dwell a fugitive among 
earth's inhabitants elsewhere. In fact, the main 
purport of the Old Testament is to set forth the 
origin, lineage and development of the Jews, as 
God's chosen people; and history, allegory, poetry 
and prophecy combine to impress their progression 
upon the rest of mankind. We see this peculiar 
people brought in contact from time to time with 
the more populous pagan empires of ancient times, 
only to preserve distinctively their own traits and 
institutions, their own ideals of religion, and their 
own exclusive record. 

We may well expect, then, while modern research 
continues, and historical remnants, geological fos- 
sils or the spoils in archaeology of long-buried 
cities are brought to light, that the origin of man's 
activities and institutions of government, will be 
eventually established as of epochs anterior, to all 
authentic record. No annals of history, sacred or 
profane, that were ever yet discovered show this 
world really uninhabited save by the people to 



GOVERNMENT BY CONSENT 99 

whose record those annals were devoted. Each 
nation — the Jews included — conquered its exter- 
nal foes or felt a conqueror's oppression. And 
hence if it be said — as against all theory of a 
primitive government instituted by the compact of 
men enjoying their natural rights — that no such 
primitive compact is shown in ancient history, we 
may reply with Locke that " government is every- 
where antecedent to records, and letters seldom 
come in amongst a people at all till a long continua- 
tion of civil society has by other more necessary arts 
provided their safety, ease and plenty.' ' 



But setting aside all theory of a primitive estab- 
lishment in this respect, we may rest the argument 
for government by consent upon what should seem 
most just and reasonable in practice. And here let 
us concede the vast difference between ancient and 
modern records in supplying clear precedents, — 
between the historic institutions of Europe, Asia 
or Africa and those which North America first put 
to grand experiment on the western continent near 
the close of the eighteenth century. Had the 
colonies planted in this new world after its discovery, 
under the auspices of Spanish, French or English 
monarchs, remained in their first condition, govern- 
ment of the people, by the people and for the people 
might have been unknown to this day, and the 
philosophy of a government by actual consent of 
the governed might have remained for mere abstract 
discussion, nowhere successfully applied in any broad 
sense. But American independence with us bore 
fruit on new soil in a modern experiment of that 



100 IDEALS OF THE REPUBLIC 

philosophy, which bids fair, at this grand stage of 
our example, to change, in times not remote, the 
whole structure of the world's political society. 
Thrones, sceptres, absolutism of every kind, the 
world over, must eventually yield to a growing 
opinion in the enlightened heart of each united 
population, which will need only competent leader- 
ship and a widely diffused intelligence to make its 
potency felt as for the general good. In the pro- 
cedure of our several States, in the procedure of 
our United States, we ourselves present at length 
before the world the spectacle of government by 
actual compact, — by the historical agreement of 
the body politic with each and all of those uniting 
under it. 



But a government by common consent is not 
of necessity a republic or democracy; nor do in- 
stitutions which admirably suit the manners and 
traditions of one capable community find equal 
acceptance or adaptation elsewhere. This is a dis- 
tinction which we Americans, while boasting our 
own liberal system, do not always keep well in mind. 
We purpose applying our democratic principle, 
the ripe fermentation of customs, habits of life and 
temperament reaching far back into a British 
ancestry, to men of other races and temperaments, 
other religions, other surroundings and antece- 
dents; and if they seem deficient in training by 
such a comparison we pronounce them unfit for 
self-government at all. We might as well ask 
whether we could, if so bidden, clothe ourselves with 
their customary institutions and live happily. 



GOVERNMENT BY CONSENT 101 

Burke has wisely said: "Politics ought to be 
adapted not to human reasonings, but to human 
nature ; of which the reasoning is but a part and by 
no means the greater part." And, again, he reminds 
us that government is a practical thing, made for 
the security and happiness of a particular part of 
mankind, and not to please theorists. Our Declara- 
tion asserts no more in this respect, than that each 
government should derive its just powers from the 
consent of the governed; and this surely imports 
that an external sovereignty should not impose its 
own unsympathetic modes and methods, however 
worthy of pattern from its own point of view, 
regardless of the habits and preferences of a people 
quite distinct. Who are qualified to define the 
boundary line at which those they rule of another 
race may be safely permitted as trained disciples 
to take care of themselves? At what year of the 
eighteenth century would the British Parliament 
and George III have pronounced even British 
colonists qualified to erect their own independent 
institutions? The only way to save the soul of a 
community of mankind is to leave that community 
free to work out its own salvation. Whatever a 
people wish earnestly for themselves must prove, in 
the long run, the best for them. 

" Laying its foundation on such principles and 
organizing its powers in such form, as to them shall 
seem most likely to effect their safety and happi- 
ness " — such is the true rule for forming or re- 
forming under popular consent which our Declara- 
tion announces. Upon a pronounced conviction 
of this kind we have seen, within a few years, the 
intelligent inhabitants of Norway, at a plebiscitum, 



102 IDEALS OF THE REPUBLIC 

deliberately choose monarchy rather than a republic 
for their form of government. In ancient times, the 
Jews, desiring a rule more spectacular than before, 
under a warrior king, found their wish gratified. 
France acted and reacted, until, upon her own lesson 
of experience, a third effort made permanent a repub- 
lic ; its president chosen not by the people but by the 
legislature. Mexico, though nominally under a gov- 
ernment like ours, shows constitutional differences, 
and her present stability is largely due to a wise and 
patriotic ruler, a soldier by profession, whose tenure 
of office, by repeated elections, has become practically 
for life. 

Rome, with her earlier Brutus, detested the name 
of king; but a later Brutus could not, in the degen- 
erate age of wealth and luxury, rally Romans to 
withstand the imperial Caesars. When our own 
Union was launched, full-freighted, as exemplar of 
popular liberty to the modern world, the name of 
king was odious here. Yet a respectable minority 
of our intelligent citizens, unemancipated from 
European ideas and traditions, believed in the 
British system of king, lords, and commons, as 
theoretically perfect. Monarchy has not in the old 
world, as society shapes itself, the odium which 
America bestowed upon it. Great Britain, second 
to no other power on earth in intelligence, energy 
and virtue, still yields consent to hereditary rule, 
with a ministry to conduct affairs responsive to the 
majority of the House of Commons, while that House 
and its members are closely answerable to the 
voters. Call it monarchy or republic, as we will, 
popular rule in Europe is largely the rule of con- 
stituencies in a legislature which represents the 






GOVERNMENT BY CONSENT 103 

people; and the liberalizing of politics as obedient 
to public opinion is, after all, the chief concern of 
government in modern times. Everywhere the 
trend of popular consent respects tradition, and 
true patriotism must work out its ends in patience. 



Let us observe that, incident to the right of 
instituting a body politic, the people may rightfully 
reform, alter or totally change their government 
whenever their safety, prosperity and happiness 
require it. And the inducement to such a change 
should be that the government which already exists 
fails of its object in accomplishing those ends. 
Change of institutions sets in naturally, like the 
change of customs and manners from age to age, and 
some basic method for effecting it, gently and 
gradually, should exist under any system ; but when 
it comes to the need of some radical alteration which 
cannot be so made, and the revolutionary sentiment 
is ripe for a government quite new and different 
from that already in operation, the people, rising in 
their might as some swelling flood bursts the obstruc- 
tion of a dam, may rightfully substitute what seems 
to them needful, bringing the new rush of water to 
a more appropriate level. Government we have 
always with us, in human life; and such revolu- 
tionary changes as find justification do not consist 
in simply subverting or destroying, but rather in 
displacing one system and substituting another. 

Reluctance to exercise this inherent right of 
fundamental change should be shown by every 
people who propose a new and untried political 
experiment, especially when that experiment has 



104 IDEALS OF THE REPUBLIC 

not already been approved by successful trial 
elsewhere. For the ills we fly to may prove far 
greater than those we escape. Such was the equable 
state of mind with which our admirable leaders in 
1776 appealed to mankind. " Prudence, indeed, will 
dictate," they lay it down, "that government long es- 
tablished should not be changed for light and transient 
causes; and accordingly all experience hath shown 
that mankind are more disposed to suffer while evils 
are sufferable, than to right themselves by abol- 
ishing the forms to which they are accustomed." 

On all occasions of violent change and dissolution 
and the establishment of a new autonomy, a new 
government, revolutionists should show to the 
world a just cause in order to gain that international 
sympathy which men need at such a crisis. They 
should show long suffering and forbearance under 
tyrannous wrongs; they should show they have 
reached a last resort; they should disclose rational 
institutions to supplant existing ones, and a rational 
and consistent purpose in planting them; they 
should show sincerity of heart. Their appeal should 
be to the Divine arbiter of battles who rules the 
universe; and they should invite, moreover, the 
alliance or, at least, the passive goodwill of fellow- 
men massed elsewhere in the great family of nations. 
Always and everywhere, in this world's political 
progress, a strong and justifiable presumption exists 
in favor of the government which is already long 
established and in continuous operation. 



Great changes may be wrought in a government 
through one of two means: compulsion by some 



GOVERNMENT BY CONSENT 105 

sterner will to which a people submit as irresistible ; 
or a strong co-ordination of wills among the people 
to accomplish voluntarily what most desire. But 
in either case, the old continuity of the body politic 
should be to a large degree respected, and the habits 
and customs of those governed allowed a reasonable 
scope. When our thirteen colonies rebelled, each 
had its civil 'and political usages, its own system of 
self-government, its idiosyncrasies, and hence the 
republican system which each framed apart worked 
readily. As the old veteran of Lexington recalled, 
in a later century, his people went into the fight 
because they had always governed themselves and 
always meant to. But as to our continental union 
the experiment was new, and it was for want of 
custom and continuity in that respect that political 
errors were made and the plan needed revision. 

Gardiner, in his scholarly history of the English 
Civil War, points out that the reason why Parlia- 
ment failed to bring about a government of the 
people, following the death of Charles I, was that 
positive compulsion was wanting on the one hand, 
and regard for the continuity of English habits on 
the other. And so was it, we may add, with the 
French national struggle in the next century to set 
up for the first time a republic. Continuity, in 
either case, and orderly conduct favored largely an 
old religious establishment which neither bald 
Calvinism nor an atheistic fellowship could replace; 
a legitimate ruler of the hereditary kind; social 
ranks and orders of the accustomed sort ; and withal, 
the easy pleasures of a common people susceptible 
to national glory and given to the worship of their 
betters. The earnestness of ideals appealed to such 



106 IDEALS OF THE REPUBLIC 

an England or France less strongly in those days 
than the desire to thrive in one's accustomed voca- 
tion, enjoy home and fireside as formerly, have a 
just ruler and escape burdensome taxation. Chronic 
unrest and discontent, on the other hand, so far as 
Great Britain was concerned, sectarian earnestness 
in religion, antipathy to temporal ranks and orders, 
found presently its way across the Atlantic to col- 
onize this new world ; while loyal conservatism and 
content in the hope of better times remained at 
home. Cromwell ruled while he lived in the name 
of Puritanism, Napoleon for a time as the armed 
warrior of democracy; each shunned the old name 
of king and assumed of choice another title. Yet 
the continuity of popular sentiment was ruptured 
in either case, and when the sceptre fell from the 
grasp of individual usurpation, reaction brought 
back for a time in each country social conditions and 
manners much as before. 



In all revolts of citizens or subjects of a body 
politic, the legitimacy of the existing government 
and of that orderly establishment by express or im- 
plied consent which has ripened de facto into de jure 
authority, ought to be well heeded. It is this long 
regulation of affairs, duly acquiesced in, which pro- 
duces a social and political cohesion not to be readily 
disturbed. Not even a popular uprising can justify 
itself unless the rule antagonized is that of some 
flagrant wrong or usurpation never sanctioned by 
the people and intolerably oppressive. For modi- 
fication merely, for reform, for a better security of 
fundamental rights, amendment should be sought 



GOVERNMENT BY CONSENT 107 

if possible through some recognized means con- 
sistent with a peaceful continuance of the lawful and 
established authority. In Great Britain, as else- 
where, during the past two hundred years, liberal 
extension of the suffrage, with a corresponding con- 
trol of affairs by representatives of the whole people, 
has made immense progress; and yet without 
diverting the tranquil succession of hereditary 
monarchs or parliaments. We may hold it not as a 
detriment but for immeasurable gain that the 
Mikado of Japan, throwing off the dreaded seclusion 
which once enwrapped the absolutism of his power, 
has led his own people into the civilized relations of 
modern life. And inasmuch as Russia owes her 
singular advance among the world's powers to the 
wise though barbaric direction of Peter the czar, 
and his successors, it is but just that her capable in- 
habitants should seek political salvation, if possible, 
through methods which may reconcile, rather than 
eliminate, the political power which autocracy 
generously, and it would seem honorably, proposes 
to share with them. 



For the United States, severally or in their 
collective might, an orderly change, whether by 
specific amendment or the adoption of some new 
constitution, is both expected, as time goes on, and 
fundamentally provided for. Whenever our people 
seek to improve upon existing institutions, State 
or national, as they frequently must, they agitate 
and bring influence to bear, to secure a change by 
legitimate methods. In one instance of our history, 
and only one, was a more radical course attempted 



108 IDEALS OF THE REPUBLIC 

and the immediate effort failed. I speak of the Dorr 
rebellion (1841-42), where popular repression by 
a State provoked resistance. Rhode Island, the 
last and most reluctant of our Revolutionary re- 
publics to enter the new Union, was the latest among 
them all to preserve a royal charter as her funda- 
mental law ; and the most obnoxious of that charter's 
ancient provisions operated for more than forty 
years of our nineteenth century to confine the right 
of suffrage and representation to freeholders of land 
and their eldest sons. The wrong to be remedied 
was palpable. Cities like Providence grew populous 
with useful and intelligent citizens, not permitted 
to vote because — though rich in personal property 
— they owned no land, and all petitions on behalf 
of a vast majority were unavailing. Farmers set at 
defiance a vast manufacturing interest. The charter 
pointed out no regular means of amendment. Claim- 
ing, therefore, that authority in each American 
State vested inherently in the people, a revolution- 
ary committee of Rhode Islanders called a conven- 
tion, framed a new constitution which yielded the 
franchise in favor of the people, and upon its adop- 
tion by a popular vote of the disqualified, endeavored 
to set up a new State government to displace the 
existing one. The regular legislature and author- 
ities thus defied appealed for protection to the 
United States under the guaranty clause of our 
Federal constitution, and the President, as in duty 
bound, announced recognition of the old and es- 
tablished authorities of the State. Fortunately, at 
such a juncture, bloodshed was averted and local 
opinion soon wrought peacefully a reform, by per- 
missive methods. Under authority of Rhode Is- 



GOVERNMENT BY CONSENT 109 

land's lawful legislature a new State convention was 
called — this time with regular credentials — and 
a new constitution giving the desired extension of 
the suffrage was adopted by the people and went 
formally into effect. " We declare " is the announce- 
ment of this instrument of 1842, abrogating that 
charter from the Stuarts which had served for 
nearly two hundred years, " that the basis of our 
political system is f the right of the people to make 
and alter their constitutions of government, but 
that what exists at any time is obligatory on all till 
changed by an explicit act of the whole people." 

In other words, the legitimacy of an existing gov- 
ernment of competent authority must be respected. 
It had been a slender thread of legitimacy which 
held this Union together in 1787 under the old 
Articles of Confederation when the Continental 
Congress became paralyzed; and yet the Phila- 
delphia convention respected that Congress by pro- 
curing its sanction to submit the new plan of Union 
to separate State conventions and its consent to 
abide by the results. That constructive ingenuity 
which Americans manifest politically on dread 
occasions like these has won men's admiration in the 
old world. Whatever the danger, our citizens do 
not lose their heads nor suffer their government to 
lapse into anarchy. 



We may conclude that government, as we find 
it to-day among civilized nations, is by no means 
an exact thing for classification. The old divisions 
of monarchy and republic do not suit, now that 
representative bodies of the people are found, 



110 IDEALS OF THE REPUBLIC 

under either form, participating more or less in the 
public direction. Between free democracy and 
what we call an oligarchy or aristocracy, republics 
themselves have varied, as a comparison of our own 
States a century ago would show — Ohio and South 
Carolina for instance. With forms of government 
thus approximating, wisdom and honesty of ad- 
ministration count more and more for the happiness 
of a people. Yet wherever the mass of inhabitants 
as voters hold the reins of power they cannot escape 
responsibility for the men and the means they choose 
to apply in administering. A despot may ruin those 
who cannot resist his oppression, because subjects 
only; but if democracy fails it will be because the 
people themselves have become contemptible. 



CHAPTER VI 

WRITTEN CONSTITUTIONS 

IF our present form of government remains un- 
changed for centuries, the stream of American 
history will flow onward by regular division 
marks, like a river defined on its map by the tracery 
of latitude and longitude lines. Wherever great 
political policies are seen to take their course, the 
crisis will date during some one's presidency, just 
as in Roman chronology the reckoning ran when 
such and such citizens were consuls. But there is 
this fundamental difference between the ancient 
republic and our own — that the two who were 
each year chosen consuls together had by no means 
the vast power of initiating and directing, which be- 
longs now-a-days to a President of the United States ; 
it is in the governor of a State, rather, with his color- 
less functions, that we perceive an analogy. 

All this humdrum of precision, with regular 
legislatures and brief and uniform terms of the 
executive, originates in a closely denned system of 
government, where both life tenure and hereditary 
power are ignored, and popular elections, held at 
fixed intervals, promote fellow-men to honors for 
short and stated terms. No casual majority vote 
in Parliament or its popular branch controls, in 
our practice, the executive, or compels a special 
appeal to the country; but each department works 



112 IDEALS OF THE REPUBLIC 

independently of the other, to a great extent, while 
the stated term lasts, and popular pressure, pending 
elections held at periodical intervals, is exercised 
but indirectly. Fixed and frequent opportunity for 
change, not spontaneous change itself, is the boon 
which a government like our own bestows upon its 
voters. 



America's prime contribution to political science 
consists in a written scheme such as defines precisely 
the modus operandi for government in each and all 
of its three great departments. Custom habituates 
the people to such a scheme, and, except in minor 
details, no change is likely to occur for centuries to 
come, if we but keep government itself secure against 
usurpation. To take, for instance, our constitution 
of the United States, — by far the most compre- 
hensive and significant of all such instruments, — 
we see Congress and the Executive measured side 
by side and balanced, each with its term defined, — 
Senate and House being renewed apart, — while the 
Judiciary alone is established with a life or good 
behavior tenure for each incumbent. All is spaced 
off clearly and permanently, the machinery of na- 
tional operation once set in motion. And yet for- 
tuitous circumstance determined the initial date 
from which all future ones were to be reckoned. 
March 4th, 1789, marks that initial date in our 
chronology. Yet it was nearly the end of that 
month of March before a quorum of our first Con- 
gress came together; and, what with delays attend- 
ant upon an electoral count and the arrangement 
of preliminaries, April had fairly ended, besides, 



WRITTEN CONSTITUTIONS 113 

before Washington reached New York city, our 
temporary capital, and took his inauguration oath, 
an impressive ceremony. Not until after the 12th 
amendment to our constitution had been adopted, 
by 1804, did the 4th of March, as the date on which 
all Presidential terms were to commence, become 
embodied in the written text of our fundamental 
law, so that nothing short of a new constitutional 
amendment could change it. 

From the 4th of March, then, dates constitution- 
ally each new administration and each new Congress 
for the United States of America, the life of the one 
embracing the space of four years and that of the 
other bisecting it. Such has been the constant 
course for more than a century, and so must it con- 
tinue, while our present text remains unaltered. 
Of late years, however, we find some one in Congress 
proposing an amendment so as to postpone inaugu- 
ration day to some later date than the 4th of March 
— perhaps to that very 30th of April, when Wash- 
ington was first installed. And what is the reason 
given for such a change? Simply that there is 
chance of finer weather for out-of-door ceremonies 
at our capital, than the fickle 4th of March can 
furnish. A trivial reason this, as against the grave 
objections to lengthening that interval, already 
great, between the popular choice in early November 
and the date, four months later, when a new Congress 
and a new President may lawfully assume the reins 
of power. 

If Congress really wishes to change the date of 
Presidential inaugurations for social and ceremonial 
convenience, no constitutional amendment seems 
requisite at all. An act of Congress should suffice. 



114 IDEALS OF THE REPUBLIC 

Take a leaf from the late experience of England in 
the coronation of Edward. He became virtual king 
on the death of his mother, but the enthronement 
at Westminster Abbey was postponed for cause to 
a much later day. A new President of the United 
States, I presume, can quietly take his oath of office 
on the 4th of March, and appoint his cabinet, 
while, if Congress so directs by law, the pomp and 
circumstance of a public inauguration can beset later. 
For students of American history, it may be 
worth observing that, with November as now 
the uniform month for Federal elections (as well as 
for those of most States), the grand electoral year 
of the Union is leap year by the calendar. Hence 
the recurring year of the popular vote for President 
is always some multiple of four; while that for 
choosing representatives to Congress comes twice 
as often, or at each multiple of two. The 4th of 
March following such computation brings the ac- 
cession of a President or at least of a new Congress. 



Invention, in the founding of a political system, 
comes less frequently as a novelty than through the 
accretions of long custom. Written constitutions, 
as we know them in America, should not be deemed 
a pure innovation — the product of creative genius 
— but rather the fruition of methods to which these 
English-speaking colonists had long been habituated 
by their royal charters. For under the law of the 
mother country, in colonial times, corporate char- 
ters were specially granted to individuals or com- 
panies by the king or parliament ; and in all British 
corporations, public or private, lay or ecclesiastical, 



WRITTEN CONSTITUTIONS 115 

such grant was upon certain fundamental terms 
and conditions expressed in writing. To such an 
instrument of legal creation all by-laws or ordinances 
of the grantee had to conform. If, in Great Britain, 
municipal government bound electors or incor- 
porators to make rules and to conduct public busi- 
ness after the methods imposed by charter, no less 
had the great colonizers for British America, whether 
individual or joint patentees, to found and maintain 
their respective settlements upon the written terms, 
more or less liberal, which home sovereignty im- 
posed. Hence came chartered government in 
America. At the present day we all are familiar 
with schemes of constitution and by-laws under 
which private clubs or business bodies organize, and 
the habit of conforming discretionary development to 
the more rigid text of fundamental conditions is 
inveterate. We have grown insensibly into con- 
stitutional interpreters in all matters of public 
regulation, and constitutional interpreters, none 
the less, in our private relations of life. We move 
forward like an army corps whose commander must 
keep to the route prescribed by the written orders 
of his superior; we manage affairs like the trustee 
or executor who, with all his latitude of discretion, 
must observe the terms of the will under which he 
acts. 

Blackstone, whose Commentaries came out shortly 
before our Revolution, classified the governments 
of these American colonies as (i) provincial, (2) 
proprietary and (3) charter. And yet, historically 
speaking, most of our thirteen colonies had been 
settled originally under a parchment charter or 
grant of some sort from the British crown, which 



116 IDEALS OF THE REPUBLIC 

served as a basis of government; most inhabitants, 
moreover, had accustomed themselves to some 
written fundamental policy to which all local legis- 
lation had to conform. A royal governor ruled his 
province under instructions which accompanied or 
followed his commission from the crown; while 
proprietors, as in the Penn and Baltimore families, 
framed their own basic conditions for the people. 
Massachusetts had a charter, reserved and cautious 
in its allowance of self-government and unlike the 
earlier one; while those of Connecticut and Rhode 
Island were so liberal in that respect as to serve 
for written constitutions long after each became an 
independent State. 

The germ of popular rule in our colonial charters 
consisted, like that of all private guilds or corpora- 
tions at the common law, in bringing the whole 
body of stockholders, or those immediately invested 
with affairs, into an annual meeting for the election 
of managing directors. Representation serves the 
convenience of modern civil government, popularly 
conducted, as does the proxy in private corpora- 
tions. 

Provincial governors came into harsh collision 
with our local assemblies of the people in the last 
colonial years; and against their harassing conduct 
those of our colonists rebelliously disposed set up 
the claim of earlier rights and privileges under the 
charter now transgressed. But fundamental re- 
strictions of some kind were generally admitted; 
as, for instance, that no law in these colonies should 
be made repugnant to those of England; and, in all 
but three of our colonies, it was clear that the Brit- 
ish crown (aside from a royal governor's negative) 



WRITTEN CONSTITUTIONS 117 

reserved its right to approve or disapprove each 
colonial act of legislation. There were other funda- 
mental terms, deemed by our settlers in the nature 
of a privilege rather than a grievance; such as the 
right of making judicial appeal to England from all 
colonial courts; or that charter provision, expressed 
or necessarily implied, that the laws of England 
should be locally enforced so far as applicable. 

These early American charters afford a curious 
and interesting study. In the earliest among them 
we find ideas expressed which have immensely 
influenced the growth of manners and politics in 
this new world, not through the colonial era alone, 
but for all history. Some power external to each 
colonial legislature must have existed for testing 
the validity of its enactments ; and that paramount 
power the mother country claimed as her own. 
Emanating from the same national source, and 
embodying the same national purpose, we may 
expect to find these thirteen colonial governments 
closely, on the whole, resembling one another in 
essentials ; at the same time that differences of local 
origin and development gave rise to local idiosyn- 
crasies in the details of public management. 



It may be said, moreover, that written instru- 
ments befit our modern theory that government 
rests primarily and most fitly upon the consent of 
the people, and is derived from their voluntary 
compact. Such, we have seen, was the ideal set 
forth by John Locke and his inspirers. American 
annals record with a tender pathos the gathering 
of pilgrim fathers in the Mayflower's cabin to sign 



118 IDEALS OF THE REPUBLIC 

such a novel compact for that strange land on which 
they were about to set foot. Nearly thirty years 
after this earliest precedent set by her own children, 
we see England herself, in 1649, while all was civil 
turbulence and the King's fate in suspense, consider- 
ing in the House of Commons that scheme of a 
written constitution known as the " Agreement of 
the People." That the scheme itself proved futile 
does not militate the doctrine that government draws 
properly, in its establishment, the fundamental 
consent and confidence of those destined to live 
under it. England failed; and so far as America's 
better skill in such framework is concerned, I con- 
ceive that long tuition under chartered forms 
explains best our own successful evolution of written 
constitutional rule similarly agreed to. 

Sir Henry Vane, that spotless champion and 
martyr of popular rights through England's civil 
war, who brought to the service of a commonwealth 
the self-effacing support of noble birth and philan- 
thropy, has been praised by some as the real 
originator of the idea of government by written 
constitution — as projector, in fact, of such a system 
in England long before English colonists in America 
ever applied the idea. But I think, rather, that 
the seed of that same idea germinated in Vane's 
mind in earlier manhood, when he walked the narrow 
streets of Boston a fellow-colonist and, honored 
as a privy councillor's son, was chosen governor of 
Massachusetts for a year. The suffrage which gave 
him that promotion deduced its sanction from the 
King's written charter, however forced might have 
been the interpretation of that parchment. And 
more than this, American scholars have shown 



WRITTEN CONSTITUTIONS 119 

that soon after, or in 1638, Connecticut adopted 
a written constitution of her own in a general 
assembly which met at Hartford. 



The two chief components of American State 
constitutions have been: (1) a bill or declaration 
of rights and (2) the framework of government 
itself. And hence, in one aspect, such an instru- 
ment is seen to be a written safeguard to each 
individual citizen against all undue pressure of the 
people as a whole; and, in another, the charter 
of common security for citizens at large — for the 
body politic combined. For the bulwark of all 
government by compact intends a two-fold purpose 
— the welfare of the people as a whole, and the 
welfare of the people individually. 

But declarations of right and details of disposition 
are not always easily separable in such instruments. 
States, from 1776, set up apart their separate schemes 
of organized rule, consonant to colonial experience, 
under instruments which blended declarations of 
right with details of administration. Here a pre- 
amble of rights, followed by a separate framework 
of government, became so much the style of com- 
position, that when, in 1787, for the whole Union, a 
new constitution was framed to replace the futile 
Articles of Confederation, objection was made that 
this instrument offered a framework only; and yet 
among its original provisions were various safe- 
guards of rights, — such, for instance, as concerned 
habeas corpus, bills of attainder, the punishment 
of treason, and the prohibition of religious tests 
for office. In State constitutions, too, we find 



120 IDEALS OF THE REPUBLIC 

scattered provisions which bear upon individual 
immunity, among the details of government erec- 
tion. 



The great advantage of a written scheme of 
government for a commonwealth consists in pre- 
cision and permanency ; its disadvantage is rigidity, 
a want of elasticity and adaptiveness to changing 
modes and circumstances in society. It is funda- 
mentally ordained that public operations shall go 
on after a certain course; and any one, where abuse 
or violation is threatened, may appeal through the 
courts to the written text, wherever that text is 
explicit. Yet it may come about, in the lapse of 
time, that the course so ordained gets antiquated, 
outworn, unsuited to the new genius of the body 
politic ; and in such a case the explicit text cramps 
like a steel fetter. We must change or modify, or 
else we must circumvent provisions. Thus, our 
Federal constitution, so hard to amend literally, 
became irksome to the people, as democracy grew, 
in committing the choice of President and Vice- 
President to sporadic colleges of electors; and the 
remedy was found presently in choosing such electors 
as mere agents to register the people's vote. Quite 
contrary was this to the original intent of that 
instrument. More recently, voters have chafed at 
the literal requirement that Senators in Congress 
be chosen by a State legislature; and again an 
expedient gains ground — that of pledging legis- 
lative candidates to respect the voters' own prefer- 
ence for Senator as shown at the polls. For here 
amendment is doubly difficult, since Senators in 



WRITTEN CONSTITUTIONS 121 



Congress oppose the change. In short, the people 
advance in political influence and the control of 
affairs; all public agents or managers, all electors, 
representatives, officers, must yield to the collective 
sovereignty that employs them. The written text, 
then, of a constitution remains, but the spirit which 
applies it practically is liable to change. 

And again, we should observe that while the 
written text is explicit on many points, its language 
may admit of inference and construction. And this 
is well; for a written scheme of government should 
not be precise in the lesser particulars. We are 
not likely to see a president of foreign birth placed 
in authority over us, nor a chief justice deprived of 
his office against his will without some formal 
process of impeachment. We shall not find a House 
of Representatives assuming to legislate regardless 
of the Senate, nor a Senate originating revenue 
bills in utter defiance of the House. For on such 
points the mandate of our Federal constitution is 
clear and positive enough. But when it comes to 
considering how far an Executive may rightfully 
initiate a foreign policy of his own or pursue military 
reconstruction in disregard of Congress ; or in what 
respect the United States may levy taxes or ap- 
propriate money without trenching upon the re- 
served rights of States or the people, we are left 
to a debatable interpretation of the instrument, 
because its intent is left in doubt and certain powers 
are merely implied. 

In any instrument of compact which men of one 
generation may frame together, their only clear 
comprehension relates to existing circumstances, a 
present atmosphere; while with other generations 



122 IDEALS OF THE REPUBLIC 

in the remote future vast changes of condition and 
surroundings may arise, unforeseen by the original 
parties to the compact, incapable in fact of being 
comprehended in their full bearings, even though 
men among such f ramers may have had the prophetic 
wisdom of a Moses. Especially does this hold true 
in a progressive government like ours, where foun- 
dations are laid for a new nation of immensely 
expanding area and population, whose citizens are 
stimulated each and all to education and advance- 
ment. Who among the fathers of 1787 could have 
imagined that the union of States and territories 
for which they contrived would transcend ere this 
the Mississippi, stretch beyond the defiant peaks 
of the Rocky mountains and wash the distant shores 
of the Pacific? So is it, again, where new inventions 
of science change vastly the social and industrial 
operations of society. And thus already do we 
reach a bound-post of time, by no means the re- 
motest, where an old textual scheme of government, 
with original language unchanged, must of necessity 
be construed and applied to wholly new conditions — 
to a modern situation unforeseen and never by the 
clear foresight of our ancestors provided for. 

It is here that the inconvenience of a written 
constitutional text not readily changed becomes 
painfully apparent to posterity. A law, like our 
common law, by slowly broadening precedents, 
with easy opportunity to advance or modify grad- 
ually, as customs change, and even to overrule 
or reverse — a law which marks by stakes, as it were, 
the progress of common sense under those varying 
conditions of life which impel the current — may 
direct naturally, and its regulation runs smoothly, 



WRITTEN CONSTITUTIONS 123 

even though at times apparently capricious and 
uncertain. And in purely statute law, opportunity 
is found, as new legislatures convene, for change 
and conformity to prevailing modes. That body 
which we see assembling so regularly to enact laws, 
fixes and unfixes, as opinion bids, and does away 
with the obsolete. We may tire of such constant 
mending and meddling, yet we should be far worse 
off if acts of legislation were not readily liable to 
change. But now when we come to the funda- 
mental principles proclaimed in a written constitu- 
tion for selves and posterity, we find, as most 
appropriate, a certain stability and fixedness to 
which we must, in large measure, conform our 
political habits. And that impresses upon us, first, 
that those fundamentals should be few compara- 
tively, broadly applicable and fair to remain long 
unvaried; next, that some adequate measure of 
change, however conservative, should be provided; 
and lastly, that the slower and more difficult the 
efficient means of change, the more liberal should be 
a permissive interpretation of the text itself as 
present convenience may require. 



As to change itself, this, under our Federal 
constitution, unlike that of most States, is involved 
and difficult, as perhaps it ought to be where interests 
so vast and intricate in their scope involve the happi- 
ness of millions of people spread over so immense 
a surface. More of the difficulty, in fact, is due to 
our steady national expansion since the constitution 
went into operation, than to any specific hindrances 
imposed by the instrument itself. Ten articles of 



124 IDEALS OF THE REPUBLIC 

amendment were readily adopted which our first 
Congress proposed in 1789, and two more were 
added without much agitation in the course of the 
next fifteen years. But thenceforward the process 
became blocked by the increasing magnitude of the 
undertaking. The only three articles since added 
to our Federal text in the lapse of a century have 
been the military outcome of a bloody and devasta- 
ting strife. Under one permitted method of amend- 
ment, Congress, by a two-thirds vote of both houses, 
proposes the change and the legislatures or conven- 
tions of three-fourths of the several States must 
ratify. This is the only method thus far pursued. 
Another and a more ominous mode is provided, 
whereby, on application of the legislatures of two- 
thirds of the States — now forty-six where once 
they numbered thirteen — a national convention 
shall be summoned. Yet, even in such a dread 
alternative, Congress cannot be dispensed with; its 
own majority of Senate and House must call the 
Union's convention in order to give it legitimacy, 
and though the intent of our constitution is manda- 
tory in that respect, the question still remains how 
can two-thirds of the States compel their application 
to be respected? For to hold a convention of their 
own, Congress failing to pass an enabling act, 
would be revolutionary. But here we may trust 
to native ingenuity should an exigency occur; and 
the inference is that at such a stage of public ex- 
pression reformers would find a majority in both 
houses, to carry the needful measure. 

Fundamental provisions irrepealable and per- 
petual in terms are sometimes found, though rarely, 
in a written charter of government; yet the binding 



WRITTEN CONSTITUTIONS 125 

force of such provisions upon a remote and unwilling 
posterity must be doubtful, and certainly such 
provisions are impolitic. Only two exceptions of 
the kind are seen in our Federal instrument: one, 
which left the slave trade unhampered until 1808, 
proved but temporary; the other, of truly per- 
manent import, forbids that any State, without its 
consent, be deprived of its equal suffrage in the 
Senate. We hold it a hardship, that in a body of 
increasing potency so immense as the United States 
Senate, Nevada, a mere mining camp, should cast 
peremptorily a vote equal with that of populous 
New York or Pennsylvania; yet thus it is written, 
because of original compromise; and dwindling 
numbers or lessening resources can never be made 
here the basis of discrimination against an unwilling 
State once duly admitted, if perpetual provisions 
hold good. The only prudent recourse of Congress 
is not to admit as a State at all, where decay or 
insignificance appears the probable outcome. 

Wherever change in the written charter of govern- 
ment becomes practically impossible or extremely 
difficult, the modification attempted will be in a 
free interpretation of the existing text. Fashions 
change and so do ideas; social and business modes 
vary from age to age ; the prevalent desire demands 
that government shall not hamper the public will 
too closely nor confine it to the trammels of a 
method which it has outgrown. To republican 
forms of government America has become attached, 
and long experience in popular methods deepens 
the affection and reverence for them. We are willing 
to be brought up as pupils to such a faith and to 
practise it when mature. We are loyal to a Union 



126 IDEALS OF THE REPUBLIC 

the grandeur of whose development has been largely- 
due to a development in the several States, whose 
separate inclination to democracy has proved the 
guiding influence. 

As to the aggregate powers of the United States, 
this general government of ours, it was well that the 
written text employed general phrases which ad- 
mitted of a flexible meaning, rather than enumerate 
and define specifically. Such should be the constant 
preference in all written instruments of lasting and 
momentous import; for where, as in some of our 
later 8: ate constitutions, technical details are 
copiously set forth for rigid observance, contempt 
and a wilful disobedience gain root unless textual 
change is easy ; though there it has been easy. But 
in a national experience, where amendment of the 
constitution is found extremely difficult, we have 
had eras and ruling parties of strict construction, 
and eras and ruling parties of broad construction; 
and accordingly the interpretation of our written 
text varies with prevailing politics from age to a:r 
Strict interpretation was the fashion in the cays of 
Jefferson and Jackson, while at the beginning, 
under Hamilton's inspiration, as again at the present 
time and during our present administration, the most 
latitudinous construction of Federal powers has 
been claimed. Once the text of our written instru- 
ment served as a sort of fetish to bind men's con- 
sciences, while now we see a stretching forth by 
those in power to perform some daring act thought 
desirable, the possibility of constitutional con- 
straint coming only as an afterthought, and when 
the pride of achievement has already been enlisted 
to coerce a court of interpretation. 



WRITTEN CONSTITUTIONS 127 

The rule of interpretation is a familiar one that 
a statute should be construed according to the 
contemporaneous intent of the legislature, giving 
due heed to circumstances. But some acts of 
legislation are meant to be specially applied or tem- 
porary, while others are intended to serve for a long 
period with broad and expansive application; and 
where the latter was manifestly the intent, an 
adaptive sense seems reasonable. If we may affirm 
this distinction in a statute, so readily repealed or 
amended by comparison, how much more fitly 
should it be of a written scheme of government, 
affecting the lives and fortunes of vast numbers of 
inhabitants, in a long line of crowding ranks through 
generations to come. And especially should a 
flexible interpretation hold good where experience 
is progressive, while literal amendment of the text 
is difficult. For it is better and healthier to give to 
an ambiguous ordinance a meaning appropriate to 
existing needs, than to plunge a people into blood- 
shed for the sake of consistent precedent. Advance 
we must, and if we cannot surmount an obstacle in 
the path we must work round it. 

This constitution, which for more than a century 
has given stability and scope to our national system, 
was by its own written expression ordained and 
established by the people of the United States for 
themselves and their posterity. It set up a lasting 
framework under which successive Presidents were to 
serve for four years, and successive Congresses were 
to consist of Representatives chosen for two years 
and Senators by a rotating scheme for six, while 
incumbents of the Judiciary were each to hold office 
for life. The admission of new States in the future 



128 IDEALS OF THE REPUBLIC 

and even the subdivision of States was foreseen and 
provided for. On one special point an unalterable 
condition was imposed for twenty years. Here, 
then, was an extensive written scheme for the whole 
people and posterity, far transcending by intend- 
ment the reach of most acts of mere legislation 
such as we find contained in a code. 

But appeal to the written text is not the all in all 
of constitutional government. Appeal lies further- 
more to the honor, the loyalty and patriotism which 
that text engenders. Government after a certain 
pattern welds together in conformity the people 
and their constituent parts; general habits are 
formed, contiguous inter-dependence is created; 
while, should dissension arise, such a principle 
works out its natural association on the one side 
and its disassociation on the other. Such was the 
insensible operation of our Union, in its social and 
individual growth, three quarters of a century ago, 
until civil war resulted; the situation, unforeseen 
by our framers, being, that two hostile social and 
industrial systems had expanded in rivalry across 
the whole continent geographically. 

By the time that Calhoun and Webster debated 
in the Senate the true intent of our Union — 
which partook really of a two-fold character — 
and still more so after both of them had passed 
from life, no mere construction of a written text 
could suffice for our practical conduct as people in 
the political sense. Flesh and blood were bound up 
and bound together. The conditions of 1830 or 
1850 in this Union were not those of 1790 or 1800; 
nor even were those of 1850 identical with those of 
i860. Nothing stagnated. In the South, homo- 



WRITTEN CONSTITUTIONS 129 

geneous in staple-raising interests and an aristocratic 
structure of society, many now felt a strong wish to 
dissolve relations with the rest of the States and 
recombine by themselves; while the vast majority 
of States and inhabitants were devotedly attached 
to the one Union to which they had constantly 
owed their prosperous existence and happiness. It 
was more than an issue of ita scripta est; it was that 
of the most passionate feeling enlisted opposingly. 
Long since that strife of 1861-65, the two sections, 
once in belligerent warfare, have reunited ; and with 
a mutual harmonizing of industrial and social sys- 
tems throughout the Union, our constitution 
amended and the old barriers swept away, we see 
other habits of national life adopted and other 
standpoints taken for a textual construction of the 
charter we all live under. Custom will continue to 
influence the passions of our people, and those 
passions will still influence interpretation, or rather 
will bend verbal and literal expression to immediate 
needs. And once more, in all interpretation of 
man's written ordinance, there is an ordinance from 
above, divine and all-comprehending, to which wis- 
dom and human effort should ever conform. " No 
human laws," says Blackstone, " are of any validity 
if contrary to the laws of nature; " and these laws 
of nature, — or indeed of nature's God, — are lasting 
and immutable, the rock foundation alone fit for 
human fundamentals. 

And yet I would not have it thought that the test 
of interpretation, at any crisis of constitutional 
government, lies in the inherent wishes, the passion, 
the mood, the passing spirit of the times. Every 
administration has its caprices, its errors, its pet 



130 IDEALS OF THE REPUBLIC 

notions, at a particular period. If it be wrong and 
foolish to invoke our national pride to make strong 
and permanent what is wrong and unjust in a present 
policy, it is doubly so to force interpretation of a 
written text to the sanction of some prevailing 
evil erroneously uppermost. We hear much in 
these days of making constitutional law mean just 
what we wish it to mean ; of teaching administration 
in America as a science which law, all written funda- 
ment of government, must yield to and subserve. 
Such a theory, if followed out, leads to despotism 
of the strongest, to the subversion of all salutary 
constraint, of all check rightfully imposed by the 
past upon the inclination of the present. Such 
impulsiveness and disrespect of discipline we should 
avoid. The great danger of our present American 
age lies in the inordinate pursuit of wealth, in ag- 
grandizement, accumulated force and monopoly. We 
are hardly willing, as a nation, that other nations 
should trade except as our own feeders and sub- 
sidiaries ; as individuals we seek to set up standards 
of personal privilege inconsistent with those theories 
of equality and moderation on which the republic 
was founded. We need, therefore, the constant curb 
of constitutional constraint — of fundamental maxims 
strong enough to compel government in the name 
of the people to respect itself. 



What shall be the authoritative arbiter, the true 
human interpreter of a written constitution? In 
American law this arbiter of fundamental power 
has constantly been the supreme court of appeal in 
the jurisdiction ; and long since, such an immediate 



WRITTEN CONSTITUTIONS 131 

umpire has been recognized both in State and 
United States practice. For the legislature may 
pass an act, or the executive may initiate a policy, 
which conflicts or seems to conflict with the con- 
stitution, so that rights of the individual or of the 
general public are put at jeopardy. Judicial inter- 
vention resolves such an issue, and this after a 
method which best conciliates assent. A test case 
between individuals is made up and tried, when, 
perhaps, the eagerness which induced the enactment 
or policy in question has somewhat subsided. The 
solemn decision, affirming or disaffirming, affects 
only the immediate parties before the court; it is 
rendered dispassionately, after full and exhaustive 
arguments on each side as to the legal aspects of the 
question. The opinion in full is published and goes 
permanently upon the record ; no sweeping overturn 
of legislative or executive act is attempted. The 
result of any test case is to put government to its 
afterthought and give calm reflection an opportunity. 
If, in the suit brought, one party litigant may thus 
escape the act challenged as unconstitutional, 
others by suit may do the same; and government 
avoids the dilemma of a practical frustration by 
accepting such arbitrament, no department bearing 
more than its own share of the consequences. 

But we should observe that the decision of the 
supreme or appelate court on a constitutional issue 
does not always gain or deserve finality. For of 
the three grand departments of government, — 
executive, legislative and judicial, — the judiciary 
is the weakest, the least capable of enforcing its own 
mandates. In times, accordingly, of vehement 
onset by executive or legislature, especially where 



132 IDEALS OF THE REPUBLIC 

judges themselves are chosen at the polls, the 
judicial instinct must be to bend to the blast — to 
apply the ingenious casuistry of a profession to 
sustaining the course that government may already 
have entered upon. Nor is a court likely to fare 
better when it undertakes to resist the popular 
current by a decision untenable. Judges them- 
selves prove predetermined and fallible, on political 
issues which strongly involve political feeling; and 
neither the immunity of lofty station nor a life 
tenure of office can wholly assure one's personal 
independence as umpire. No human tribunal, in 
short, is found wholly pure, wholly true, wholly 
unbiased in judgment. 

From a bench of justices, however august, a gov- 
ernment like ours has one last appeal, in great 
emergencies which enlist the passions and interests 
of a whole people. It lies in the people themselves, 
who may rightfully consider upon review the issue 
involved, and, through constitutional means, — as 
in condemning at the polls, agitating a change, 
placing other public agents or representatives in 
power, upholding by stress of arms, if need be, a 
contrary course, — may compel at length, as rulers, 
that obnoxious decision, or rather the obnoxious 
act or policy therein sustained as constitutional, to 
be reversed or abandoned. This, in a republic like 
ours, is ultima ratio and the people themselves 
through legitimate elections should finally prevail. 
Though the purgation be a drastic one, it may save 
from death itself and dissolution. No worldly ad- 
judication can be more solemn than this. 



CHAPTER VII 

A UNION OF STATES 

AMERICA, as we have seen, — the English- 
speaking inhabitants of our thirteen origi- 
nal States, — set to the world the first 
grand example of government as based upon a 
written scheme of fundamentals, framed by assem- 
bled delegates of the people in convention, duly- 
adopted and practically applied. 

True, we derive from England herself, our home 
and mother country, documents of an earlier date, 
expressive of what Chancellor Kent has styled 
" those great fundamental principles which support 
all government and property." 1 Magna Charta, 
habeas corpus, the bill of rights -settling the succes- 
sion in 1689 upon William and Mary — these and 
kindred parchments long preceded America's re- 
volt against the mother country. Revolution on 
this side of the Atlantic was not for subverting the 
civil rights therein embodied, but to confirm and 
perpetuate them for another continent. As a fact, 
many of those precious maxims in our American 
constitutions originated earlier in one or another of 
these English instruments. 

Yet such parchment declarations, English or 
American, usually promulgate nothing new, but 

1 Kent Com. 451. 



134 IDEALS OF THE REPUBLIC 

rather reassert time-honored rights of the individual 
or the people which arbitrary power had once 
abused. " Not a single new right was given to the 
people," says Macaulay of the act of 1689; though 
the germ therein implanted, he adds, yielded the 
ampler civil and religious liberty of a later age. 
Habeas corpus, we may recall, was a freeman's re- 
course in the courts, long before the definitive act 
of Charles II gave it a firm footing. " Due process 
of law " had been granted by Charles I in 1627, 
upon Parliament's petition, not as a novel act of 
sovereign grace, but in recognition of an ancient 
statute, at least three centuries earlier. 

In brief, the great documents of what has been 
termed the British constitution, are, for the most 
part, reassert! ons of fundamental rights of the British 
freeman, remote, in fact, and far antedating America's 
settlement ; so true is it, historically, that civil lib- 
erty, in our Anglo-American race, has been nurtured 
through generations in long succession on parental 
soil, — that the fountains of our common law are 
supplied from sources hidden in remoteness. And 
yet the British constitution, so-called, reaching back 
into mediae valism, is very different from our con- 
stitutions of modern America; for these not only 
guard one's sacred rights against his government 
or the rights of the people collectively, but they 
establish the whole framework of government itself 
in its several departments. The Briton remains a 
subject, bound in allegiance to a sovereignty long 
ago placed over him; while the American is a 
citizen only, joined with fellow-citizens in the pa- 
triotic support of institutions which they have es- 
tablished together within a century and a half and 
still legitimately control. 



A UNION OF STATES 135 

For our ancestors here the feat accomplished, 
the problem solved, was a duplex and difficult one. 
r.nly under a written instrument did they sep- 
arately ordain State government, but they set up 
unitedly a central authority which should combine 
the orbits of present and future commonwealths 
in one grand system. Hence have we for supremacy 
the State and the combined United States ; the latter 
fabric superposed, and both sovereignties working 
in unison and contemporaneously for the common 
good. Complex, intricate, and sometimes antago- 
nistic in their joint operation, we have well accus- 
tomed ourselves to the ingenious mechanism, and 
government of the people moves on in majestic 
poise, delicately adjusted to those centripetal and 
centrifugal forces, both of which are needful to a 
rational liberty. 

It is not, then, as a nation or an empire, pure and 
simple, with the cumulative strength of a central- 
izing power, that we stand guard over this continent, 
but as a union of States — a Union whicli, experi- 
menting at first as a league or confederacy, was 
presently made stronger under a more perfect ordi- 
nance of the people ; yet, at every stage of develop- 
ment, confined in its sovereign scope under an in- 
strument carefully drawn up and deliberately 
adopted, — all residuary powers remaining in the 
several States or the people. We are not and never 
were " the American nation," as some would style 
it to-day — though national sentiment gains head- 
way steadily — but the " United States of America," 
and literally confined in dominion to this hemi- 
sphere. Our consistent motto has been " E prari- 
bus unum " — the unity not of many persons but 



136 IDEALS OF THE REPUBLIC 

of many distinct commonwealths. The flag of our 
Union, surpassingly beautiful, symbolizes fitly our 
historical origin and historical growth; its thirteen 
stripes of red and white immortalizing the thirteen 
founding States, while its blue galaxy of stars at the 
corner changes gradually, a new star added for each 
new State. Yet we must confess that those stars 
seem smaller and less distinctive as their numbers 
multiply on the azure square; that those unchan- 
ging stripes of red and white become more and more 
significant of a State glory that has passed; while, 
on the other hand, the flag as a whole, the symbol 
entire of the stars and stripes, attaches ever closer, 
in its world-wide circuitings, the affection of a 
people and the respect of mankind. Though we 
may never be in literal truth a nation, while this 
constitutional union lasts, yet our susceptibilities 
are strongly national and must continue so. 

No new government rests fundamentally secure, 
which is not to a large extent the accretion of insti- 
tutions already familiar and acceptable to its in- 
habitants. To design, to set up a political estab- 
lishment entirely novel, with no support of cus- 
tomary habits, is to work gropingly and invite the 
errors of inexperience. Something of this sort hap- 
pened historically in framing the government of our 
Union. For the thirteen original States, each with 
its own characteristics of colonization and develop- 
ment, the task was comparatively simple; for here 
a colony was to be transformed into a common- 
wealth, with the same jurisdiction, and much the 
same distribution of powers as before. But for a 
Union of these combined commonwealths — needful 
as that Union was felt to be for successful revolution 



A UNION OF STATES 137 

— plans and clear precedents were wanting ; State 
and local jealousies obstructed ; and the first actual 
experiment of a United States wrought out failure 
and almost inevitable disaster, before a second and 
stronger plan replaced it. Not national, nor yet 
confederate, but a compound government, federo- 
national, has been and still continues the result. 



Lord Karnes, of Scotland, predicted in 1774 
that though an American Union would be difficult 
(as he thought), each colony was already prepared 
for its own republican status by merely dropping the 
governor who represented the Crown. In Connecti- 
cut and Rhode Island, governors in fact were already 
chosen annually, as their charters permitted; and 
so had it been in Massachusetts, in her earlier history. 
To democracy in other respects the people of these 
thirteen colonies had long been trained. Town or 
county had supplied the unit of local rule ; and town 
or county representatives had been yearly chosen, 
moreover, for each colonial house of commons. A 
local judiciary had long been maintained with 
smooth-working machinery ; while for a local senate 
or upper house in a legislature of two houses, the 
familiar provincial council of the governor might be 
readily made over. In short, the image of State 
government in America, with its three-fold distribu- 
tion of fundamental powers, had long been visible in 
the structure of these thirteen colonies, as develop- 
ing apart for a century or more under the parental 
supervision of Great Britain. And accordingly, 
when filial ties were severed, the omnipotence of a 
State legislature composed of local representatives 



138 IDEALS OF THE REPUBLIC 

was the fact most palpable in our new self -establish- 
ment. For a local assembly of the people, in colonial 
times, with the customary permissive right to tax 
and raise a revenue, had long been the bulwark and 
resource of our several colonies, whenever concert- 
ing against parental oppression. 1 

Bills of rights we find in these earliest State con- 
stitutions, whose maxims came directly from the 
English documents I have mentioned or else were 
evoked from colonial wrongs such as the Declaration 
itself recited. Written constitutions, flagrante hello, 
transformed thirteen dependent colonies into repub- 
lics. Virginia and Massachusetts characterized 
with dignity the new establishment as a " common- 
wealth;" Pennsylvania ambiguously as a "com- 
monwealth or state; " the other ten asa " state." 

For times thus early the " convention," composed, 
like any legislature, of chosen representatives of 
the people, was the grand regenerator of govern- 
ment and fundamental law. Sovereignty in any 
event was set in operation through delegates of the 
people; but convention was something distinctive, 
as though summoned from the profoundest depth 
of human authority. Virginia, in 1776, set the ex- 
ample, soon generally conceded, of calling a repre- 
sentative convention together as a fresh and imme- 
diate emanation from the people. Each popular 
constituency chose its own delegates, and such a 
convention revolutionized political society at its 
own plenary discretion, always, however, in order 
that a government, republican in character, might 
result. 

x Schouler's Constitutional Studies, 51. 



A UNION OF STATES 139 

If there be any new political phenomenon which 
time reveals in the several State governments of 
our broadened Union, it is the increasing strength 
which referendum bears to the primitive plan of 
representative authority; it is the democratizing of 
a State's own institutions somewhat as in the old 
local town or county meetings of all the voters. 
Whether such change appear in giving greater lati- 
tude to the voter himself, than at first, for choosing 
high dignitaries of the State, executive or judicial — 
officers who a century or more ago were selected 
almost invariably by governor or legislature ; or by 
encouraging the procurement of new constitutions 
or new basic amendments for curbing legislative 
and official discretion; or, finally, in applying the 
initiative or referendum to statutes themselves, so 
that a sort of plebiscite may serve the ultimate test 
of enactment — in all such instances our State pro- 
gression at the present day is decidedly towards a 
closer popular direction in affairs. It is because of 
the growing complexity of our modern life, social, 
political and industrial, — the congestion of wealth 
and opportunity produced by immense corporate 
concerns, public and private, as population concen- 
trates in its distribution, — that democracy finds 
its aims counteracted and struggles to assert itself. 
Corrupt and grasping monopolizers are its deadliest 
foes, and a reasonable regulation of some kind be- 
comes needful. 

The referendum of a new constitution or of a 
constitutional amendment is a vital incident of 
broadened self-government as a principle. For next 
to individual influence in one's own home, his family, 
his social and political environment of town or city, 



140 IDEALS OF THE REPUBLIC 

his choice of a representative, should be that of 
voting upon all changes of the basic institutions he 
lives under. At the present day, our people as a 
whole do not think the representative convention 
itself sufficient, even though a legislature should 
co-operate; but any convention work as a final 
product must be submitted to the voters for their 
majority sanction before it can fairly become full 
and operative. Two modes are thus left optional: 
one, to propose constitutional amendments through 
the legislature, such amendments to be duly sub- 
mitted to the voters for their direct adoption or re- 
jection; the other, to summon through the legis- 
lature a State Convention of representatives duly 
chosen, with full power to draw up a new constitu- 
tion for superseding the existing one, or at their 
discretion to propose only specific changes, — their 
work to be tested likewise by direct submission at 
the polls. In either case it is virtually a referen- 
dum to the whole body of voters that determines 
whether or no the proposed fundamental change 
shall take effect. 

But some of our States go even farther at this day 
in upholding a people's sanction as paramount. 
For the time-honored intervention of the local legis- 
ture, whether to propose formally such amend- 
ments or to pass a law summoning a convention, 
blocks sometimes the wishes and purpose of the 
people. From self-interest or other unworthy 
motive the legislators of one or both houses may 
shirk their duty to initiate, so that modification or 
supersedure of an existing constitution fails con- 
sequently at the threshold. Two States, at least, 
have met that difficulty in recent years. New York, 



A UNION OF STATES 141 

by its constitution of 1894, provides, by way of 
option, for the automatic assembling of a State 
constitutional convention once in twenty years, if 
the people vote favorably for it; and no initiative 
at all is needful to that end on the part of executive 
or legislature. This is something unique in our 
political annals. The Oregon constitution of 1902 
makes an innovation still more sweeping; for aside 
from convention or legislature altogether it permits 
specific amendments to be drawn up and proposed 
by popular initiative. Whenever such proposals 
are duly filed in writing with the secretary of State, 
the governor shall make proclamation; whereupon 
such amendments, with pamphlet arguments pro and 
con, shall be submitted to the voters at large, at 
the next general election, for a conclusive adoption 
or rejection. All, then, is not strictly representa- 
tive, now as formerly, in the creed of American 
politics. 

Within the last twenty years, to be sure, we have 
seen some Southern States resorting once more to a 
local eighteenth century practice, by allowing a 
convention of delegates to frame a new constitution 
for the commonwealth, once and for all, without 
hazarding its submission for adoption at the polls. 
The reasons for this, however, are local and peculiar; 
the constitutional change in view being to limit 
suffrage in fact so as to exclude a certain class of 
citizens racially from participating in elections, as 
before. This was the work of the white men of a 
commonwealth, convinced that such a change — a 
negro delimitation — was vital to the general wel- 
fare. I make no comment upon the change itself, 
which seeks artfully to avoid conflict with the 



142 IDEALS OF THE REPUBLIC 

fifteenth federal amendment; time, that tries all 
things, will test the wisdom of such work. Yet all 
must admit that a self-sufficient constitutional con- 
vention is abnormal in a democracy, at the present 
age, however discreet its action. For our own race, 
at least, if not for all races the world over, true liberty 
tends to enlarge, not diminish the franchise; and 
education, public or private, when patiently be- 
stowed, develops self-respect and self-restraint in 
the individual and impels him to live well, both for 
himself and others. By the time that any one 
indicates his worth in the community, through in- 
telligence and honest industry, the right to vote 
will hardly be denied him. 

While at the date of the Revolution, our thirteen 
commonwealths resembled one another in a certain 
type of self-governing democracy, traces of original 
differences of settlement were yet visible. As far 
back as 1635 we see, from Winthrop's Journal, how 
fondly Massachusetts regarded her filial Connecticut, 
while Virginia was thought irreligious, and sailors 
who had come to Boston harbor on a Maryland bark 
were hauled before the magistrates for reviling the 
townspeople, " calling them holy brethren, the 
members, etc., and withal did curse and swear most 
horribly." 1 Yet, notwithstanding differences in 
temperament, ideas and habits, all our thirteen 
colonies were republican at heart; and all stood 
sturdily for liberty and human rights, when jeopardy 
drew near. Under the blended influence of a rep- 
resentative Union and representative States, with 
an immense immigration added, these types have 

1 Winthrop's Journal, 1634-35. 



A UNION OF STATES 143 

softened their contrasts during the last hundred 
years ; though, for a considerable space in the nine- 
teenth century, population moved westward mostly 
in parallel lines — New England and the Virginia 
neighborhood, more especially, impressing them- 
selves upon settlers in that basin of the Missis- 
sippi which the Ohio river divides, so as to people a 
broad area with farmers on the one side and planters 
on the other. But western habits and intercourse 
made a breezier, a more boastful, a less conven- 
tional set in this great fertile valley ; though superior 
wealth, variety and numbers favor still the Atlantic 
slope to the present day. And, more than all this, 
we come to realize that, in addition to the earlier 
influx of emigrants from Great Britain and northern 
Europe, we have now a vast swarm yearly from the 
Mediterranean ports, with French Canadians, besides, 
who pour into the mill towns of New England. 
These people are not English in traditions, language 
or religion, and they multiply faster than do our 
English-speaking families. Northern Atlantic ports, 
such as New York and Boston, bring together the 
medley brood of a composite white race of differing 
language and religion, to join their destinies with 
ours: Italians, Greeks, Jews, Hungarians, Russians, 
Syrians and Armenians among them. All these 
seek shelter in the faith of equal rights and self- 
government ; nor possibly will our vast experiment, 
as events now tend, limit itself for all time to a 
single continent or to a single race of mankind. 



We come, now, to consider the evolution of the 
one united government from the many. How ten- 



144 IDEALS OF THE REPUBLIC 

tatively, how reluctantly, by comparison, this central 
United States was planned and placed to overarch 
State sovereignty, the record shows clearly. True, 
those thirteen commonwealths had always been 
unified, in a sense, from abroad, and reared together 
as liege colonies of Great Britain. But they were 
not the only British colonies on this Atlantic slope; 
Canada, to the north of us, would not join our 
struggle for independence, though repeatedly in- 
vited. To such British provinces standing armies 
and taxation from abroad were incidents familiar; 
but to us they had not been. 

Among our thirteen colonies there had been 
various tendencies to union from the outset. The 
immense preponderance of Anglo-Saxon elements 
guaranteed to the soil a people bound by those 
lasting ligaments of a common origin and history, a 
common language and literature, common customs, 
common institutions and a common jurisprudence. 
Europe, besides, had gained, since the discovery by 
Columbus, more than a hundred years' headway in 
liberal ideas before our colonization commenced at all ; 
and our settlers were Christians of the Reformation 
for the most part, unlike the French and Spanish 
colonists of earlier date elsewhere. They were 
liberal experimenters in politics, and their love of 
liberty, naturally expansive in a new country, drew 
peculiar sustenance from England's own effort 
under the Stuarts. 

Moreover, these thirteen colonies, in their common 
isolation from the Old World, inclined where con- 
tiguous to enter into mutual leagues and compacts. 
Arms and succor had to be provided against the 
Indians, their common foe, where philanthropy 






A UNION OF STATES 145 

might not pacify; reciprocal trade and commerce, 
on common rivers, across colonial borders and 
along the seacoast, needed occasional adjustment, 
as also did the reciprocal right to settle, buy lands 
and inherit, and extradite criminals. The royal 
grants defined colonial boundaries towards the 
interior with so little precision that, whenever the 
time should come to push settlements westward 
into the remote wilderness, conflicting claims must 
have merged into a common territory, with com- 
mon pre-emption from the red tribes and a joint and 
comprehensive policy to pursue towards all frontier 
foes of our progress. For behind these untamed 
aborigines, and outflanking us by way of the St. 
Lawrence and great lakes and the Mississippi, stood 
France and Spain with their missionaries and ex- 
plorers of earlier date than our own. Still more 
instant for mutual adjustment were Atlantic prob- 
lems of coast and harbor jurisdiction, and disputes 
among adjacent provinces over the use of such 
navigable highways as the Connecticut, Delaware 
and Potomac rivers, and the New York, Delaware 
and Chesapeake bays. 



That tendencies to union existed early in these 
colonies without consciousness of disloyalty or 
forecast of a coming separation from the mother 
country, appears from various leagues or compacts 
of the colonial era. First and foremost among these 
was that of the " New England Confederacy," 
formed in 1643 among settlements congenial and 
homogeneous in character and origin. This Con- 
federacy lasted about forty years, profiting by the 



146 IDEALS OF THE REPUBLIC 

civil distractions at home under Charles I and 
Cromwell; it was styled "a firm and perpetual 
league;" and, besides providing for a combined 
military defence against invading Indians and the 
Dutch, it arranged for a mutual reception of settlers 
and the mutual extradition of " servants " and of 
fugitives from justice. Here and in other less con- 
spicuous instances of the kind among contiguous 
colonies, a board of commissioners, mutually chosen 
on the principle of co-ordinate sovereignty, was 
found a convenient mode of negotiating differences. 

After the New England Confederacy had finally 
disappeared, various plans were broached, here and 
at London, for a more comprehensive union of the 
British colonies in North America; and a loyal 
unanimity of action was the object, more especially 
against those French and Indian allies who menaced 
the general safety. Most remarkable in that respect, 
and portentous, too, was the assembling of a delegate 
convention (or congress) at Albany in 1754, at the 
King's own instance, in view of impending war. Not 
only did those delegates manage the main business 
for which they had been summoned, but they 
adopted and proposed both to Great Britain and 
the colonies a permanent plan of union which 
Benjamin Franklin, high in favor and influence as 
postmaster-general, had drawn up, to serve both 
in peace and war. Neither the colonies, however, 
nor the British Crown favored the plan; for there 
was too much of the prerogative in it to please the 
one side, and too little to suit the other. 1 

Hence, naturally enough — for the success of 
the British arms with our loyal assistance in- 

1 Constitutional Studies, 79. 



A UNION OF STATES 147 

creased both the martial hardihood and the co- 
operative instincts of our colonists — the first 
attempt of Parliament to levy taxes without the 
assent of local representatives or of our cherished 
colonial assemblies provoked united protest and re- 
sistance. Spontaneously assembled at New York 
the famous Stamp- Act Congress of 1765, — a spec- 
tacle so ominous and alarming that Parliament and 
the Crown recoiled and for a brief time receded from 
their new endeavor. But when arbitrary taxation 
was resumed, with the attempted suppression of 
rebellious violence, our first Continental Congress 
met in 1774 at Philadelphia, followed by the second 
in May, 1775, after bloodshed in Massachusetts had 
begun; then by the third in 1776, which swept away 
the last scruples of a lingering allegiance, and on the 
memorable 4th of July sent forth to mankind its 
manifesto of united revolution for an independent 
United States of America. That manifesto — our 
Declaration of Independence — stands in its pro- 
nounced maxims as the one grand historical docu- 
ment whence American government derives its 
united ideals and inspiration. 

Yet this Congress had taken up arms at the outset 
not to vindicate abstract rights, but to redress 
practical wrongs; and revolution and independence 
came to us in the main as the logical and unpremed- 
itated result of a hostile resistance. For after resort 
to the arbitrament of violence, as Jefferson reminds 
us, victory can seldom rest with wiping out the 
temporary wrong, leaving the opportunity as be- 
fore to inflict new ones. 1 Most wars, once entered 
upon, confound expectation, and like an earthquake 

1 7 Jeff. Works, 74. 



148 IDEALS OF THE REPUBLIC 

shock change or destroy existing fabrics, so that 
men re-erect or repair with quite another scope of 
vision. 



We have never since, as a people, ceased to 
recognize a Congress for the whole Union with 
powers, larger or lesser; and the Continental Con- 
gress, while assuming the full functions of a General 
Convention, annually renewed, formulated a plan 
of confederate union meant to be permanent and 
contemporaneous with declaring independence. But 
delays occurred in this more difficult and distracting 
work; and meanwhile, for nearly five years follow- 
ing July, 1776, that Congress itself, under a practical 
delegation of authority and an annual renewal of 
membership, held the original States by a sort of 
de facto alliance — revolutionary, perhaps, in char- 
acter — , maintaining a continental army under 
Washington, borrowing money, issuing a currency, 
and seeking abroad foreign aid and intervention. 
At length by 1781 written Articles of Confederation 
were fully framed and adopted. Their main design, 
agreeably to their origination, was simply to invest 
this Congress, this small delegate body of a single 
house, with such power, stingily conferred, as 
pertained necessarily to the united exercise of an 
authority already sanctioned. It was as though to 
navigate for the future with a chart, where men had 
been piloting as best they might without one. 

Little is really known, or by this day cared for, 
concerning the authorship of these Articles of Con- 
federation. The work was most likely a composite 
one, worked out in secret committee rooms and in 



A UNION OF STATES 149 

Congressional discussions behind closed doors. Here 
was to be found no distinct Federal Executive, no 
distinct Judiciary. A one-chambered Congress, 
whose delegates were yearly chosen by thirteen 
State legislatures, much like our present Senators, 
and voted as a unit and not individually, large and 
small States alike, was no great advance in political 
design from boards or standing committees or the 
projected Grand Council of colonial times. Its 
members, however illustrious, might gather in a 
room of very moderate size. And all the more did 
this Continental Congress resemble a colonial board 
of commissioners, inasmuch as it sat as a secret 
body, publishing no report of its debates and gaining 
neither buoyancy nor direct guidance from public 
opinion. 

Amendment became imperative; but the unan- 
imous consent of the States was requisite for all 
amendment whatsoever, while in fact the selfish 
perverseness of a single commonwealth blocked all 
change. Union, with so large a measure of State 
sovereignty and reserved right had proved difficult 
enough under the pressure of a common war; that 
pressure once removed and peace secured with a 
common independence, the ill-contrived scheme 
could not prevail at all against distinctive State 
ambition. The grasp of this Congress became nerve- 
less, failing its war powers, its allied army; that 
inviolable observance " by every State " which it 
nominally stood upon proved but a paper guaranty 
impossible of enforcement; and hence the Confed- 
eracy, our first deliberate attempt at sovereign co- 
existence, fell to pieces. 

Out of the temporary chaos came speedily and 



150 IDEALS OF THE REPUBLIC 

most admirably that better Union which under our 
present constitution has grown gradually and yet 
steadily to gigantic strength and greatness. I need 
only remind the reader that, with an efficient au- 
thority which supplanted the old Congress by a two- 
chambered legislature consisting of Senate and 
popular House, and with an Executive and a Judi- 
ciary added, a general government was created which 
borrowed various features from the original State 
constitutions, at the same time that many of the 
powers and provisions newly enumerated adopted 
language and ideas of the late Confederate instru- 
ment. 



Under the benign operation of that Federal con- 
stitution and its administrators, our American 
Union of 1789 has come to rank high among the 
civilized powers of the earth. I have called this 
government a f edero national one ; not strictly fed- 
eral, nor strictly national, though each new accumu- 
lation of practical force tends in the latter direction. 
Such prodigious exercise of delegated functions as 
making treaties and dealing with foreign nations, 
acquiring and regulating a territory so vastly ex- 
panded already, conducting peace and war, keeping 
up an army and navy, creating and admitting new 
States at discretion, taxing for a common revenue, 
regulating foreign and interstate commerce, and 
holding under all emergencies the common purse and 
sword, must inevitably tend to centralization. Yet, 
on the other hand, this constitution concedes the 
vast residuary powers of sovereignty which belong 
to the separate States or the people ; Congress in its 



A UNION OF STATES 151 

Senate preserves the image of the old confederate 
equality for States large or small; and though the 
apportionment of its House is based upon repre- 
sentative numbers throughout the whole Union, so, 
too, as an offset, is all direct taxation of the people. 
The powers of Congress, moreover, are specified and 
defined ; taxes or duties upon State exports are for- 
bidden, as also the preference by regulation of com- 
merce or revenue of the ports of one State over those 
of another. The discretionary power of each State, 
in methods of national choice, is constantly so great 
that, as Mr. Bryce, a keen English observer, has re- 
marked, this Union might have grown into an 
oligarchy or an aristocracy, had not public opinion 
under separate State direction enlarged the suffrage 
and resolved it into a democracy instead. The choice 
of a President of the United States does not to this 
day depend upon the aggregate popular vote of the 
Union, nor ever should it; for the true safeguard 
of State autonomy, if not of national poise, demands 
that a numerical count so vast for total reckoning 
be never the criterion of executive title. State 
rights, with State and local limits, are regarded too, 
in distributing the judicial powers of the Union; 
nor is constitutional amendment permitted except 
upon formal reference to the several States. Finally, 
— for the constitution as it left Philadelphia in 
1787 was not on the whole acceptable without some 
further amendment, — all denial or disparagement 
of other rights retained by the people is expressly 
forbidden, and the powers not delegated to the 
Union, nor prohibited to the States by this instru- 
ment, are reserved by express assertion to the 
States respectively or to the people. 



152 IDEALS OF THE REPUBLIC 

Herein may be seen an advance in expression 
upon the Articles of Confederation, whose reserva- 
tion of sovereignty had clearly been to the several 
States alone. It was nominally " we the people " 
who ordained and established by this latter in- 
strument the " more perfect Union," and who have 
since, collectively for the Union or distinctively in 
the name of the separate States, kept the great 
residuary sovereignty of this Union to themselves. 
11 To the States respectively or to the people: " no 
better phrase than this, read in our fundamental 
text to this day, can emphasize the fact that this 
constitutional Union of ours is rightly what I have 
styled it — neither a confederacy nor a complete 
nation, but a composite of the two. 

I have spoken of our State judiciary as arbiter 
and interpreter of State constitutional law. 1 A 
corresponding function, and a broader one, devolves 
upon our Federal judiciary, whose crowning tribunal 
is the Supreme Court of the United States. For 
our Federal instrument makes its own pronounce- 
ment of individual and reserved rights, and of the 
powers of Congress and the general government. 
This constitution, with the laws of the United States 
made in pursuance thereof, and all treaties made 
under the authority of the United States, are pro- 
claimed the supreme law of the land. And hence a 
last appeal to the judiciary of the Union, whenever 
legal conflict arises and a fundamental grievance is 
affirmatively shown. Europeans often wonder that 
Federal and State courts can work together in up- 
holding so intricate a jurisdiction, but, as English 
observers admit, the system of Federal supervision 

1 See. p. 130. 



A UNION OF STATES 153 

works, and now, after more than a century, works 
smoothly. 1 For America's fundamental principle is 
that the supreme lawmaking power resides in the 
people, and that whatever they fundamentally 
enact binds throughout: so that, whether in State 
or Federal application, that which is unconstitu- 
tional transcends the formally-expressed will of the 
people. 



The written text of our Federal instrument, 
except for the three great amendments born of 
fraternal bloodshed and two minor changes of much 
earlier date, stands as it stood in 1790, while Wash- 
ington served his first Presidential term. Whatso- 
ever our expansion since as a people, in condition 
or circumstances, flexible interpretation of that 
text as sanctioned by the Supreme Court supplies 
almost the only variance. Surely as a united and 
re-united people we have passed from the era of 
primitive simplicity. The old dogmas of State 
nullification and secession are never likely to be 
brought forward again to strike a chill into national 
integrity. Already do they gleam faintly like far-off 
beacon lights from the headlands we have left be- 
hind ; they cannot illumine our future. We navigate 
wider seas; our present projects are world-wide in 
their comprehension; the golden mean of influence 
over a single continent ceases already to satisfy us. 
Aggrandizement among the strong powers of the 
globe is the new ambition, and international colli- 
sions are the likely consequence. State and sectional 
severance, then, if attempted in the far future, will 

1 Bryce Commonwealth, 245. 



154 IDEALS OF THE REPUBLIC 

probably be, not to intimidate and defeat the 
whole Union by asserting a State sovereignty 
superior to it, but rather so as to save from some 
national wreck wrought through foreign wars — to 
propagate new germs of liberty in partial alliance or 
re-combination, as did Europe after the great Roman 
empire fell asunder, ruined by its own conquests. 
Nullification, therefore, means henceforth no more 
than rebellious defiance of wrongful and oppressive 
conduct by the ruling powers, as in the days of the 
Stamp Act. Secession remains simply that sacred 
right of revolution which is inherent in every political 
community as a last resort. Both State and Union 
are bound by reciprocal limitations of written law 
which each should respect, and we are far remote 
from the Hamiltonian ideal of a central govern- 
ment, conceding nothing to lessen its own supremacy 
save in matters municipal. Though the lust of 
world's dominion swells within us, we still vibrate 
between State and United States authority, like 
Galileo's pendulum ; and the just admonition of past 
experience, past policy, may yet restore us to an 
equilibrium. 

We have already a Union, even for continental 
limits alone, far greater in area, resources and popu- 
lation than any of the founders of this government 
imagined. The opportunity passed when Louisiana 
was annexed, to protest that the compact applied 
only and exclusively to our original territory as 
originally bounded. In our onward progress and 
expansion since that date force steadily gathers in 
the central sovereignty, to the detriment of State 
discretion and local self-rule. Yet State rights, 
State sovereignty, in due subordination must re- 



A UNION OF STATES 155 

main still precious ; nor should we be deterred from 
upholding them by suggestions, such as we hear 
to-day, that States cannot stand alone, that na- 
tional supremacy in all things is to be the watch- 
word of the future. We should, however, well con- 
sider wherein the counterpoise to consolidation 
may be most effective. States themselves should be 
impressed with the importance of harmonizing 
their habits, their legislation, their institutions, as 
much as possible, and of respecting one another 
in matters of mutual dealing. State rivalry, State 
exclusiveness, ought not to dictate in the concerns 
of marriage, divorce or inheritance, in modes of 
business, in taxation, or in granting or restraining 
corporate privileges. Local citizenship should be 
cherished, besides national citizenship ; the spirit of 
interstate comity should be kept up; local self-rule 
should give stability to local institutions. State 
remonstrance, State sympathetic action, may still 
avail much. Neither in State or nation, nor among 
individuals should political wisdom, generosity and 
considerateness be suffered to lapse. 



In fine, our present co-ordinate system of sov- 
ereignty is admirable in its adjustment, if we justly 
and honorably apply it. I have elsewhere advocated 
a liberal latitude of construction, wherever amend- 
ment proves difficult and the written instrument of 
government, general in its expression, permits of 
different interpretations. But not for a moment 
would I concede that a mere change of circumstances 
justifies any ruling power in disregarding the plain 
intent of a written constitution or even of a written 



156 IDEALS OF THE REPUBLIC 

statute, in its reasonable scope. Nor should any 
department of government encroach upon others. 
To say that we may interpret the people's mandate by 
present interest or desire is to falsify law altogether. 
Repeal, modification, substitution, the legitimate 
change into something else, is the only way to keep 
popular government from merging into Caesarism — 
from replacing convention or legislature by a sov- 
ereign manifesto. 

It is a healthy sign when we find people given to 
a fair discussion of their constitutional rights and 
disposed to consider what they ought or ought not 
to do, in view of the limitations set by the written 
charter they live under. And all the more so is it in 
a compound system like ours, where infringement 
by State or United States is equally forbidden. In 
the earlier years of our national growth, discussion 
was constant among statesmen as to what the con- 
stitution did or did not permit ; Hamilton, Jefferson 
and Madison led the debate at one stage, Webster, 
Clay and Calhoun at another. For however men 
might differ as to the law, they meant loyally to 
stand where the law would sustain them. But in 
these later times the written limitations of govern- 
ment are but little debated or dwelt upon; we do 
not consider what is prescribed but what we want. 
The object of rulers, like that of moneyed magnates 
in financial or industrial schemes, is to force a way, 
to achieve, or to use the current phrase, "to get 
there "; so that if plans antagonize court process is 
played off in a headlong fight for the mastery. Such 
signs indicate degeneracy. 

Let us come back, then, to written fundamentals. 
No free government can be preserved, says Virginia's 



A UNION OF STATES 157 

bill of rights, " but by a firm adherence to justice, 
moderation, temperance, frugality and virtue, and 
by frequent recurrence to fundamental principles." 
In other States of the Revolutionary era — Pennsyl- 
vania and Massachusetts, for instance — we find a 
like expression used in their original instruments, 
and " frequent recurrence to fundamental princi- 
ples " enjoined. It is that recurrence — that calm 
reconsideration of the principles upon which our polit- 
ical fabric rests, in its two-fold combination, — that 
American statesmanship needs now to cultivate. 



CHAPTER VIII 

THE DISCIPLINE OF LIBERTY 

IT has been well said that liberty's omens abound 
in every age to inspire mankind, while yet the 
discipline of liberty remains always difficult. 
Indeed, that ideal state of existence where one may 
move as he pleases, free from outside constraint, 
physical or moral, we mortals, each and all of us, long 
for and imagine, in certain moods, yet never wholly 
realize. For, though the impulse of liberty is deep 
rooted in human nature, convention — not to add 
divine ordinance — puts limits upon its exertion. No 
one can take the world for himself alone. Each 
member of society must respect the rights of all 
others with whom he comes in contact; and even 
this is irksome. Man in a crude state of develop- 
ment differs not greatly in his fondness for freedom 
from the lower types of animate creation, except that 
their earthly masters are himself, the dominator of 
the whole brute kingdom, while his own world rulers 
are from among his fellow-men. 

We affirm of animals and their species that all 
are wild by nature; that man has tamed certain 
types only, for his appropriate use in life, leaving the 
rest to range and wander free and unsubdued, save 
as he may seek to hunt and capture, on the one hand, 
for his wants or entertainment, or to destroy and 
exterminate, on the other, as pests hostile and of- 



THE DISCIPLINE OF LIBERTY 159 

fensive to the human race. And whatever may 
have been their order of subjection as among them- 
selves, from lion to jackal, it is only as the tamed 
species and their progeny grow up to useful service 
among us as domestic animals, — like the horse, 
the ox, the dog, — or are otherwise deprived of 
natural liberty for man's consumption or use, that 
we pronounce them the lawful objects of human 
ownership at all. Hence, if the untamed and un- 
reclaimed brute, once caught and confined, regains 
once more its original liberty, our property laws 
cease to apply. 

So is it in a measure with ourselves. That same 
wild state of natural freedom, subject to no other 
human compulsion under heaven, we feel was our 
own rightful and original condition. And each of 
us longs in his inmost soul, at seasons if not inces- 
santly, to escape society and authority altogether 
and once more roam free from all subjection, all 
responsibility to fellow-men, owning only nature 
for a ruler. When distressed or discouraged, weighed 
down with life's burdens and disappointments in a 
career, one seeks for solace in the pathless woods or 
by the resounding seashore, leaving society for 
solitude. To the lonely toiler of the deep, habitu- 
ated to sail and oar and the broad face of waters, 
the land's teeming soil cannot long give pleasure. 
Our log-cabin settlers in the once remote Mississippi 
valley brought up their families, a century ago, far 
from the haunts of fellow-men, until, as was said, 
the sight of the smoke curling up in the air from 
some other habitation, miles away, became a sign 
that the world's population was coming too close and 
that the pioneer's household must move still on- 



160 IDEALS OF THE REPUBLIC 

ward. For, besides individual solitude, is that of 
families, of mated companionship. And thus does 
the quest of liberty, that innate and distinctive de- 
sire from which no man lives wholly free, more than 
the beasts of field and forest over whom he lords it, 
turn back individuals from social civilization and 
manners, to relapse into native savagery and wild- 
ness. Our last census shows that more men than 
women live this nomadic life among us ; for though 
woman will sacrifice to make man a home, her 
tastes and needs lead her more naturally to refined 
surroundings and to companionship. 

How this craving for freedom may make one a 
voluntary outcast and outdweller by choice, in the 
midst of civilized society, Scott in one of his 
novels has illustrated. I refer to that scene in 
Quentin Durward, where the hero of the tale, con- 
versing with a Bohemian vagabond, thus sums up 
their discussion: "You are, then, destitute of all 
that other men are combined by — you have no 
law, no leader, no settled means of subsistence, no 
house, no home. You have, may Heaven compas- 
sionate you, no country — and may Heaven en- 
lighten and forgive you, you have no God! What 
is it that remains to you, deprived of government, 
domestic happiness and religion? " "I have lib- 
erty," replies the Bohemian; " I crouch to no one, 
obey no one — I go where I will, live as I can and 
die when my day comes. ... I can always die, 
and death is the most perfect freedom of all." 



Conceptions of liberty like these, though often 
approving themselves to the fancy, prove absurd 



THE DISCIPLINE OF LIBERTY 161 

for a practical application in life. They furnish no 
rational basis of philosophy for schemes of human 
amelioration to rest upon. Their promptings are 
savage and selfish; they are at war with society, 
with social philanthrophy ; they furnish forth an 
individual, highly egotistic, who would sweep the 
earth clear of all fellow-beings in order to occupy it 
for himself and absorb the spoils. All that might 
mitigate the harshness of such a theory would be, 
that the theorizer stands for simple wants and 
simple modes of life, for lopping off the false ex- 
crescences of social luxury. That spirit of freedom 
which gives a true progression to our race proceeds 
rather from a sympathetic soul, from friendship, 
from family and social affection, from an intense 
love of country and fellow-countrymen, and from 
devotion to their common welfare against external 
foes. Animating impulses like these have supplied 
the world with bright exemplars like Tell, Epami- 
nondas, Washington, wherever success, and not dis- 
astrous failure, has followed patriotic effort. 

True liberty, then, comports with the spirit of 
self-devotion, and the wish to achieve a genuine 
and rational co-freedom for fellow-men. And in 
that latter aspect we may well inquire into the 
nobleness of the cause itself for which a country's 
independence is invoked, and whether the result 
is to be a people's betterment or a people's woe — a 
freedom that advances or a freedom that degrades 
or annihilates. 

We of America sentimentalize over the poor In- 
dian who once roamed unhindered this vast domain 
by right of occupancy as primitive holder of the 
soil. So far as involves a regret at our failure to 



162 IDEALS OF THE REPUBLIC 

assimilate that dusky race for participating in the 
rich blessings which we and our posterity, as sons 
of civilization, enjoy, such a sentiment is generous 
and honorable; but to wish that so vast a surface 
had been left unreclaimed and unproductive to 
this day, in order that scattered tribes of barba- 
rians, armed with bow and arrow, might have kept 
it as a hunting-ground, would be foolish. And were 
the prior tenants of so rich a domain the proudest 
among mankind, liberty for the world must have 
been the better for their supersedure. Not indi- 
vidual liberty alone, nor that of clans, families or 
tribes, taken by themselves, is what society must 
most regard, but the liberty of peoples and nations 
in the aggregate, the needs and welfare of our whole 
human race. We are not to cherish the liberty 
that preserves to one or to a favored few, be they 
savage or civilized, the right to appropriate this 
earth's enjoyment, in disdain or disregard of all 
others; but that state of society in which the 
common good, the common independence, the 
highest advancement of the great ends of human 
existence, may be secured. Any savage and se- 
cluded life among mankind must be the rude, the 
undeveloped or the exceptional one; its spirit may 
serve as a corrective, a sedative, for ills and irrita- 
tion that we experience in our normal intercourse. 
The change from social fellowship to solitude may 
be curative, now and then, like any change of scene 
from city to country, from home to foreign lands. 
The sick at heart may seek seclusion as a medicine; 
but perfect personal independence at all times is 
neither good in itself nor granted to any one. Soli- 
tude is selfish and wars with the needs of society. 



THE DISCIPLINE OF LIBERTY 163 

Nor is the constant hermit the truest Christian, for 
he lazily avoids the wrestle with life which tests real 
religion and makes for individual discipline. 



Assuming, then, that liberty in human society 
is subject of necessity to constraints, let us ask our- 
selves how far such constraints may be pronounced 
just and reasonable. The constraint or hindrance of 
one's liberty may be either physical or moral; it 
may affect his person, as in depriving him of life 
or imprisoning him, or it may affect his character, 
his property, his free choice of a career. Freedom of 
the will to do or not to do a particular thing accord- 
ing as one elects is in a measure essential to indi- 
vidual liberty or freedom. Yet if you navigate a 
river you must steer clear of other vessels. And 
once more, the external constraint or hindrance 
put upon a man may relate either to his actions or 
to his expressions; as where one may not, under 
the law, violate the person of his sovereign, and 
more than this in some countries, may not even say 
freely what he thinks of such a potentate. In a 
legal and practical sense, human liberty means 
freedom from all external hindrance or restraint 
except that which the lawful rights of others, as 
defined by sovereignty, prescribe. For the rights 
of various individuals collide, in the pursuit of 
human life, and, to use a phrase of these days, where 
one man's rights end those of another begin. 



First of all, as a rational restraint upon the 
exercise of an individual's selfish wishes, comes 



164 IDEALS OF THE REPUBLIC 

nature with the revealed mandate of the Almighty. 
One of the most difficult problems of life is to rec- 
oncile man's own free will with the moral necessity 
he is under of conforming to those permanent plans 
of creation whose ultimate scope and purpose he 
cannot comprehend. It is somewhat as we perceive 
in the lives of our domestic animals, who move 
about, eat, sleep and regulate their routine in- 
stinctively for themselves, yet all the while are 
made to subserve the hidden and far-reaching 
schemes of some human proprietor which must 
affect their future. Yet in this latter instance an 
external physical compulsion is visibly exerted, 
while as to man himself, no such positive direction is 
clearly perceived, but one inches along his earthly 
span, warned that in a life to come he will be judged 
by his earthly record. For God's constraint upon 
humankind is essentially a moral one; we feel, but 
we cannot see, the controlling hand. We bear 
chastisement, discipline, the lessons of affliction and 
sorrow, whose occasion or end are but dimly sur- 
mised ; and it is only by heeding the compass of that 
delicate monitor, the conscience, that one may 
keep anything like the true reckoning for a mortal 
career. Nor does conscience itself always register 
accurately. We have upheld in our land the liberty 
of conscience, the right to freely exercise one's 
preference in religious worship and belief. In this 
latter age, however, as I sometimes think, they 
who would dispense with religion altogether, take 
to themselves the chief glory of tolerance. They 
would pervert liberty of conscience to freedom from 
conscience altogether; choice in religious creed or 
forms of worship, to exemption from all worship, 
all creed. 



THE DISCIPLINE OF LIBERTY 165 

But the world cannot long live wholesomely with- 
out religion, nor can just ideals of liberty leave a 
regulating conscience out of the scheme. That 
very word religion — or, if we prefer the synonym, 
moral obligation — imports that we are bound, in a 
sense, by firm though invisible ties of duty which 
would check each individual's wild and wayward 
disposition to turn hither and thither, catching the 
breeze of inclination, to fulfil some sinful impulse. 
Acknowledge or refuse acknowledgment, as we may, 
obedience to the divine will is still the injunction 
upon mankind. Supreme direction imports a right- 
ful check, in every age, upon all human schemes of 
liberty. That eternal regulating force which impels 
us onward, in its own chosen direction, enveloping 
our own wandering and feeble efforts in its calm 
and irresistible supremacy, is hard sometimes to 
apprehend and acknowledge. But conviction comes 
to us, now and then, with a simple lesson from nature. 
Take a holiday tramp, some bright summer's day, 
through fields and meadows, and then lie down for a 
rest upon the green sward, shaded by a spreading 
tree. Look up, as you recline, at the blue arching 
canopy above, and you perceive that serene motion 
of the sphere which had projected you forward 
during your walk and bears you along still steadily 
in its own unchanging path, whether you move or 
repose. 

" Where reason fails with all her powers, 
There faith prevails and love adores." 

Those of us to whom God's constraint does not 
appeal must at least confess that there are laws of 
nature, so-called, which place invisible bounds to 



166 IDEALS OF THE REPUBLIC 

man's liberty, and for whose transgression each 
offender is liable visibly to surfer. If we yield to 
self-indulgence in the baser appetites, sickness and 
disease result ; if we tread carelessly upon a loosened 
rock, pain and injury follow; if we place ourselves 
in the path of some swiftly-moving machine, we are 
killed instantly. In all such respects man's freedom 
is circumscribed and immunity of the person is the 
privilege of no one. Punishment and retribution 
follow transgression; absolute obedience must be 
rendered to nature's warnings and injunctions as 
to the ipse dixit of a Creator whose laws are fixed 
and immutable. I, for one, do not believe that scien- 
tific investigation is going to bring materialism as a 
finality for the race ; but sooner or later science will 
find reconciliation with religious faith. 



The next grand constraint upon individual 
liberty is imposed by human laws and government, 
and of this external clog upon our rights we see and 
feel the weight constantly. " Liberty " says Mon- 
tesquieu " is a right of doing whatever the laws 
permit; and if a citizen could do what they forbid, 
he would no longer be possessed of liberty, because 
all his fellow-citizens would have the same power." 
Civil liberty, then, — liberty in organized society, — 
is a liberty that comes guarded, defined and pro- 
tected by law ; and the best of civil governments are 
those in which the law confines itself to just and 
rational constraint or security, and affords in all 
other respects the largest permissible range and 
freedom to individual choice and selection. But 
to live outside of civil regulation altogether is per- 



THE DISCIPLINE OF LIBERTY 167 

mitted to no one ; the so-called outlaw or self -exiled 
member of society is a felon, a reprobate or a mis- 
anthrope; all the inhabited world's domain is ruled 
and regulated in the name of one sovereignty or 
another. 

There is, as we all apprehend, a wide distinction 
between free and despotic governments — between 
that civil authority which gives ample scope, in- 
viting the love and cooperation of the community, 
and that which compels submission with a rod of iron. 
In some stages of society and under certain conditions 
strict discipline is found indispensable. When we 
cross the ocean to-day, in one of those monster 
transports whose tonnage grows with each new 
construction, we become conscious that, hidden 
from our view, as not so greatly in former years, a 
strongly organized force directs the navigation 
through the deep by night and day, watchful yet 
external to us, and visibly attentive through but a 
few of its servants to our daily wants. We may 
trust its efficiency but we cannot supervise or in- 
quire; all we can do as passengers is to pursue our 
own mutual entertainment, — to eat, sleep and 
while away the time, and confide in that special 
intelligence to which our lives are for the time com- 
mitted. Such is the epitome of government to 
which the generality have submitted in most ages 
of the world and in most countries ; happy enough, if 
rulers were competent and kind. They supported 
the establishment by tithe and taxes, as we by our 
passage money ; they, if offenders against authority, 
would suffer discipline, and so would we, in a sense; 
blunder or inefficiency at some great crisis, on the 
part of such despotic direction, might to them bring 



168 IDEALS OF THE REPUBLIC 

ruin, and to us death and a watery grave. To be 
sure, the analogy is not complete. The subjects of a 
rigidly overruling government may be held for their 
whole lives and in all their private concerns, while 
our submission is but partial and temporary, limited 
to the one accomplishment of a particular journey; 
they may be conscripted to fight for their rulers, 
while we stand clear of responsibility ; they pursue 
for a living their private occupations, while we are 
left to our idle leisure. They cannot call their rulers 
to account by any means short of a revolution ; we, 
if aggrieved, may seek redress in a court of admiralty 
when we get ashore. 

But the relation of the subject or citizen to his 
government has varied in the world's experience. 
John Stuart Mill, in his learned essay on Liberty, lays 
it down that, while a struggle between liberty and au- 
thority has been the most conspicuous feature in the 
history with which we are earliest familiar, the strug- 
gle in old times was between subjects or some class of 
subjects and the government itself, while now, the rul- 
ing powers being largely chosen, the contest is rather 
for more and more people to have political power. 
Such a change holds true in large measure ; yet, as it 
seems to me, no line of distinction in this respect can 
be so closely drawn. Government at all times is the 
symbol of immediate circumstance; and in govern- 
ments not based originally upon a written charter, 
sovereignty established itself after a somewhat 
fortuitous manner, amorphous in synthetic condi- 
tions. The monarch has seldom ruled absolutely; 
he has rather gathered about him a privileged set, 
or caste, such perhaps, as birth best unites in ad- 
ministration ; and to this set, attached to the throne 



THE DISCIPLINE OF LIBERTY 169 

in influence, men from the common ranks gain ad- 
mission because of pre-eminent service and apti- 
tude, civil or military. 

The ancient republic fell. But in mediaeval times 
our representative idea came into view, whereby a 
community might gain its coherent share in gov- 
ernment, instead of lapsing into nonentity or bring- 
ing to bear upon organized authority with what 
effect it might a ponderous and disordered influence. 
This representative idea, reinforced by that exten- 
sion of popular elections under which representa- 
tives themselves are accredited, immensely affects 
civilized government in recent centuries. In the 
power of a people to choose delegates and to revoke 
at intervals the authority they have delegated, many 
believe that the problem of efficient government 
among mankind is finally solved. We see to-day the 
successful operation of such a principle not only in 
European republics but in European monarchies 
of the limited kind. 



Here in our own land we have advanced to a 
point where democracy has grown wise enough 
through education and temperament to conserve 
its own interests. And to this end, the calm and 
deliberate adoption of written fundamental instru- 
ments intrenched liberty strongly at the start. We 
have long chosen representatives of the people to 
make the laws; we have maintained local self- 
government; we elect, in the several States, not 
representatives to the legislature alone for both 
houses, but, well-nigh universally, high executive 
and even judicial incumbents. And yet, as I have in- 



170 IDEALS OF THE REPUBLIC 

timated elsewhere, we are not wedded, as a people, 
to the representative idea as the perfection of pop- 
ular intervention in affairs. What we seek and hope 
for, still further, is direct participation to an extent 
which may make representatives and public agents 
more strictly accountable to their constituencies. 
For, on the whole, a democracy may be thought 
stronger, if intelligent, when its policy is conducted 
out-of-doors, so to speak, than under the stealthy 
management of an Executive such as once involved 
us in a war with Mexico, for territorial aggrandize- 
ment and gain. Under any national establishment 
like ours, where administrations change periodically 
and opposing elements are free to make searching 
criticism, long schemes of secret diplomacy are of 
difficult fruition. 

I would not be thought to contend that in a re- 
public the expressed will of the majority should rule 
in an absolute sense. When public opinion is left 
to its natural course, there is an ebb and flow to its 
pressure: majorities are but temporary and yield 
to persuasion hither and thither; a registered nu- 
merical vote is but the contemporaneous index of 
an open agitation or discussion as to leaders or 
measures, whose conclusions may hereafter change. 
Hence minorities have rights which deserve to be re- 
spected, and no majority should seek to pre-empt the 
blessings which properly belong to the whole people. 
If this be true of political parties in general, it is true 
none the less of a particular party seeking to elevate 
certain leaders or to accomplish a definite end. Each 
honest minority is entitled to consideration and 
possesses rights which the majority is bound to 
respect; for the state or other organization seeks 



THE DISCIPLINE OF LIBERTY 171 

properly the good of all combined therein. Majority 
direction upon such a principle is a practical con- 
venience, but the absolutism of a majority is in- 
tolerable. True civil liberty, therefore, demands a 
concession to minority opinion — not a timorous 
yielding, such as blocks efficient action at a certain 
point; but yet concession and, above all, tolerance. 
And hence, too, consistently with the theory of a 
majority rule in affairs, we have largely admitted for 
convenience that election which admits to authority 
the candidate who has received only a plurality of 
votes; not meaning, however, that the people or 
their majority shall come under the yoke of a 
plurality despotism. 



Such a thing, then, as perfect individual liberty 
— to take the world as we now find it — can hardly 
exist, even in the human sense. Wherever we go 
we come in contact or collision with other men's 
rights and with a civil authority to which we must 
submit. Upon man's civil rights I have elsewhere 
enlarged — life, liberty, property, the right to a 
home, a marriage mate, a family and a pursuit of his 
own; I have discussed, besides, his political rights, 
whether as simply a citizen or as a participant in pub- 
lic direction. All such rights are definitely and liber- 
ally safeguarded in our land ; for American institu- 
tions are modern and were framed under an enlight- 
ened modern conception of man's relations to civil 
authority. Napoleon the Great once said of his 
French fellow-countrymen: "The people do not 
care about liberty; what they want is equality." 
And Herbert Spencer, approving such a dictum, 



172 IDEALS OF THE REPUBLIC 

has expressed his personal belief that neither French, 
English nor Americans understand the true principle 
of liberty. But our present concern is not so much 
with prevalent opinion, false or true, as with opinion 
that ought to prevail ; and surely no such apothegm 
should justify any despoiler in denying to his people 
one right which they deeply need wiiile permitting 
them another. " Liberty, equality, fraternity " — 
this was the glowing epigram of the French Revo- 
lution ; and though men lost their self-control when 
seeking to plant themselves for the first time on 
such a basis of philosophy, that maxim, despite all 
thwarting efforts, has at length vindicated itself in 
France with sufficient permanence. We see it to-day 
inscribed and re-inscribed upon the churches and 
public buildings of that romantic people, emblematic, 
like the tri-colored flag, of a rekindled glory. And 
that triple maxim serves well for our own country- 
men, and for every earthly government, in fact, 
which rests upon the attachment of the people. 
Liberty, equality, fraternity: not liberty alone, nor 
equality alone, but the aim to intertwine then- 
progression; nor liberty and equality without fra- 
ternity added, for in this sympathetic bond of 
brotherhood consists the healthy blend of all lives 
contending for equal opportunities into a strong 
and harmonious whole. Liberty itself, in a sane 
sense, does not vaunt its indispensableness ; nor 
does it oppose any one's eccentric wishes to the safe 
and consistent progress of the whole community. 
In moderation lies the path of public safety. " Real 
liberty," wrote Alexander Hamilton, when advo- 
cating our constitutional plan of 1787, "is neither 
found in despotism, nor in the extremes of democ- 
racy, but in moderate governments." 



THE DISCIPLINE OF LIBERTY 173 

Individualism is the pronounced tendency of 
English institutions, and still more emphatically of 
those Anglo-American. Each inhabitant should be 
left free to work out a career. Such a development 
of society stands in marked contrast to that, under 
imperial discipline and initiative, which Germany, 
among civilized and prosperous nations, fosters 
under her self -asserting monarch at this day. " The 
worth of a state in the long run," says Mr. Mill, 
" is the worth of the individuals composing it." 
And that truly English philosopher stoutly insists 
that a government should not dwarf the souls of 
its inhabitants, but give scope to each one's attain- 
ments. Anything like a bureaucracy, he thinks, 
stunts a! 1 growth ; hence just limits should be placed 
to public interference with the personal preferences 
of citizens. And he lays it down that an individual 
is not justly amenable to society for his actions, 
in so far as these concern no one but himself ; while, 
vice versa, he admits that for such actions as are 
prejudicial to the interests of others an individual 
is properly accountable and may be held liable to 
social or legal penalties. 

But how far, in the application of such a doctrine, 
are we to regard the interests of others who live 
under an organized government? To argue, with 
this eminent writer, that the only purpose for which 
power should be exercised over any member of a 
civilized community, against his will, is " to prevent 
harm to others," might mean to others, simply as 
fellow-individuals, or to others collectively, in the 
interests of the whole state. Fitly, as it seems to me, 
the interests of others should serve for constraint 
upon the individual in either sense. Sometimes, too, 



174 IDEALS OF THE REPUBLIC 

the true interests of the individual should be pro- 
tected against his own desires. And hence Mr. 
Mill's illustrations do not seem convincingly put. 
One should not be arrested, because drunk (so he 
contends), though otherwise with a drunken soldier 
or policeman, because the latter is violating his 
especial duty. The privacy of one's house, I admit, is 
not to be invaded, where the drunken man inflicts no 
harm upon others of his household nor disturbs the 
peace outside. One's home is his sanctuary, or at 
least his castle. But a drunken man on the streets 
deserves arrest, whether as a menace to others and a 
disturber, or because of his own helpless exposure to 
maltreatment ; though in the latter sense a policeman 
takes charge of him more for his safety than his pun- 
ishment. Were an insane person thus at large, the 
reason for depriving him correspondingly of lib- 
erty in the interest of society and himself would 
be plain enough. And more than this might be 
claimed for society collectively, in not permitting 
the harmful and painful public spectacle of a drunken 
person — since one openly and notoriously intem- 
perate is liable to become a vagrant, a pauper, or a 
criminal, and such a sight on our streets offends the 
public morals. If this be true, all claim of a per- 
sonal liberty to live and act as one pleases, provided 
he does not interfere with the actions or liberties of 
others, seems too extensive to be conceded. Adult 
men and women might claim thus the right to loose 
and licentious intercourse with one another, and 
even to flaunt their immorality in the face of society, 
provided such misconduct was mutually agreeable 
and confined to themselves. For the maintenance 
of good morals, of fit education and example for the 



THE DISCIPLINE OF LIBERTY 175 

young, or even of healthy sanitary conditions and 
police, any government, I conceive, has the right 
to subordinate the license or liberty of individuals 
to liberty, in its widest and fairest scope, as compre- 
hending the high-advanced freedom and welfare 
of the whole. 

As for those more indirect methods of discouraging 
drunkenness or other vice in a community, the 
question of rightful infringement upon individual 
liberty is open to much debate; but in any case, I 
conceive, those in the minority on questions of 
competent legislation must yield, while preponderant 
opinion is against them, and obey the laws like good 
citizens, while endeavoring as they may to bring 
both laws and opinion hereafter to their own side, 
as discussion continues. Mr. Mill admits that the 
government may rightfully check a pernicious 
trade, like that in opium, or may place a traffic in 
deadly drugs or explosives under prudent supervi- 
sion. In dealing with intoxicating liquors, to be 
sure, we find more difficulty. The people of con- 
tinental Europe, we well know, though addicted to 
their beers or light wines, make temperate use of 
them; hence they might justly resent, as an in- 
fringement on personal liberty, all public effort to 
check or forbid indulgence in such liquors. But in 
our northern countries the use and gross abuse of 
alcoholic stimulants go frequently together. Scot- 
land is a realm where the influence of Robert Burns 
and his poems has been so great as to hold back 
public prohibition in such direction; and in one or 
another of its chief cities I have seen young sons and 
daughters, at the close of some holiday's sport, 
taking their reeling gray-haired sires in charge 



176 IDEALS OF THE REPUBLIC 

amidst a fuddled and good-natured throng at the 
railway station, whose aspect was one of the saddest 
I ever witnessed. The brotherhood of man may 
thus degenerate into an enfeebled brotherhood of 
topers. In England you will see a fighting and 
quarrelsome crowd, rather, under like conditions. 
Here in America, where excessive drinking on occa- 
sion was the one prevailing vice, a century or more 
ago, the cause of temperance has made great advance 
in later times, and society is vastly better for the 
change. To a large extent this is the result of volun- 
tary self-restraint in the individual use of liquors; 
but more still it comes from society's increasing ban 
upon the unconstrained in such appetites, and from 
laws concerning the traffic itself, which tend to 
check the liberty of self-indulgence. It is no longer 
the custom of college students or a rollicking gentry 
to drink until one or another boon companion rolls 
under the table; manual laborers have largely 
ceased to make of each recurring holiday a frenzied 
spree, regardless of wife and family. I am not myself 
a total abstainer ; but I believe most heartily in the 
encouragement of individual temperance after one 
method or another; and in that sympathetic ex- 
ample, moreover, among fellow-men, whereby one 
denies himself lest he make his brother to offend. 
Where taxes are to be laid, I am willing that fer- 
mented drinks should be burdened, not less than 
luxuries. I recognize, too, the good which local- 
option laws have wrought in dealing with the tem- 
perance question, whereby the test may be applied 
to towns apart, according to the differing sense of 
a local majority. For in some homogeneous rural 
community it will often be found that the individual 



THE DISCIPLINE OF LIBERTY 177 

finds no assurance against temptation except in 
total abstinence and prohibition,; while among the 
incongruous elements of a large city, where differ- 
ences of taste and association must be more liberally 
deferred to, public regulation by license makes the 
better preventive, and moderate drinkers may stand 
together. By either method, as discriminatingly 
applied under different social influences, the cause of 
true temperance is positively advanced. And, on 
the whole, the true correction of a vice, which lies, 
after all, only in excessive indulgence, in abuse, is 
found in bringing the social example of a community 
to bear upon the weaker brethren. 



So strong, indeed, is individualism in our Anglo- 
Saxon race, — the desire to do and to earn each 
for himself — that the establishment among us of a 
community to supplant all private and personal 
ownership seems too remote for serious consideration. 
True, an envious majority, enraged by the growing 
inequality of private fortunes and iniquitous means 
of obtaining them, may trample down wealth or 
make blind effort to build in combination a 
business of which they are practically ignorant. 
But this can hardly amount to more than impover- 
ishing society throughout and compelling individ- 
uals to start anew to make a living. Would we be 
really happier as a people, if there were no such 
thing as private property at all? If each and all of 
us worked, as commanded, for a certain moderate 
period of our lives, and then for the rest of the time 
was maintained in enforced idleness — in an honored 
pauperism — at the common cost? Where is that 



178 IDEALS OF THE REPUBLIC 

solace that comes to toil when wife, children, family- 
are ignored and an individual ambition to rise in 
life and do great things furnishes no mainspring to 
activity — when all men are to be alike in reaching 
some dead level of prosperity? 

Bellamy's prophetic fiction haunts a reader's mind 
by its fascination; but the present life is not to be 
satisfied by grand parks and pleasure grounds in 
common, nor by hearing at one's own comfortable 
home, by telephone or graphophone contrivance, 
sermons and orchestral concerts whose real stimulus 
should consist rather in the atmosphere of congre- 
gated friends and brethren. How is organized en- 
deavor to bring about its surpassing results of public 
wealth and luxury under these conditions? For in 
all such experiments a sort of divine omnipotence, 
virtue and wisdom is looked for in bringing such 
results to pass. Gonzalo plans an island where all 
shall be equal in condition and happy, and yet he 
would be king of it. Our new observer in " Looking 
Backward " does not trust his revolutionized com- 
monwealth to a successful democracy, to a govern- 
ment by the people, nor even to a Union which 
admits State counterf orce into its orbit ; but his cen- 
tralized authority moves irresistibly forward by a 
sort of military mechanism, each individual being 
assigned his place arbitrarily to work out an ap- 
pointed part ; while its chief executive, the President 
of the United States, is to be chosen, not by the 
whole people, but by retired pensioners and veterans 
alone. 

This is not liberty, self-government, democracy; 
but, instead, a sort of complicated tyranny with 
benevolent intention. Wherever we see, to-day, or 



THE DISCIPLINE OF LIBERTY 179 

think we see, the spectre of communism, it is mostly 
as a red-handed, destructive force, hateful of all 
discipline, madly jealous of superior means or station, 
brutal and murderous wherever it may gain the 
mastery. And, on the other hand, psychologists 
point out as a fact in human nature, that one of the 
first things a new-born infant shows is a sense of 
personal possession — that this or that toy is 
" mine." Even religious enthusiasts who have 
taken the vow of poverty hold firmly by their own 
pet animals, books or ornaments. And thus is the 
desire of property, of exclusive ownership, shown 
to be natural and universal. 

True benevolence imports the desire to share with 
others something which is superior in ourselves. And 
that socialism which is genuine originates not justly 
in those who have no possessions to bestow, but in 
those who have them and are moved to relieve and 
distribute generously. 



All government, in fine, implies authority, a 
supremacy over each and all individual action in the 
name of the whole; and even when we speak of a 
government by consent we mean this. Laws, 1je 
they collectively imposed by the fiat of a people, or 
by accredited representatives of a people, or by the 
long sanctioned ukase of a czar, bind the inhabit- 
ants individually; and the very fact that some 
positive rule is prescribed for general observance is 
so far a constraint upon the liberty of individuals. 
And, more than this, individual liberty yields not 
to law alone but to the force of public opinion. 
How strangely does prevalent custom, prevalent 



180 IDEALS OF THE REPUBLIC 

habit of thought, change in some respects. The 
hated, the persecuted of one generation, becomes 
the saint, the exemplar of the next. For the strength 
of the people in a commonwealth, the strength of 
republican government, lies not in the supreme 
wisdom of the many, nor in their steady consistency ; 
but rather in their constant sincerity of purpose, 
their honesty, and the adaptation of their views to 
immediate ends. Prevalent opinion and feeling are 
no positive assurance of right; and hence we edu- 
cate the young morally and intellectually, so that 
when they become responsible citizens they may be 
better fitted to cope with the new and perilous prob- 
lems of social existence. What we call the judgment 
of history is the calm and deliberate verdict which 
posterity in general renders as concerning the past, 
and though this be seldom positively reversed it 
may vary with new proof adduced or even with new 
impulses and beliefs in those who serve upon the 
world's jury. 

Yet civil liberty becomes fitful in a republic 
through lapses of civil vigilance, and remedies are 
sought by way of retribution where preventives 
should have been earlier applied. And thus do we 
find it at the present time, where the task has grown 
formidable through habits of indolent and per- 
missive relapse. The popular mind is impressed, 
not so much by a general exposure of wrongdoing 
as by concrete instances of malfeasance. And 
having focussed their displeasure upon specific 
cases of wrongdoing, their wrath is terrible and 
retribution comes like the vengeance of heaven. 
And thus does civil liberty assert and re-assert itself 
in the commonwealth, even when fitful and occa- 



THE DISCIPLINE OF LIBERTY 181 

sional vigilance takes the place of that better vigi- 
lance which never sleeps, never is basely diverted. 

The ideals of individual and of united liberty- 
should be cherished and preserved. " It is not his- 
tory," writes Amiel, the Genevan, in his Diary, 
"which teaches conscience to be honest; it is the 
conscience which educates history. Fact is cor- 
rupting, — it is we who correct it by the persistence 
of our ideal. The soul moralizes the past in order 
not to be demoralized by it. Like the alchemists of 
the middle age, she finds only the gold that she 
herself has poured into it." Liberty in submission 
— it is that which all humanity must at last con- 
cede. How grand an ideal — how noble a problem 
to be worked out. For it is not enough that man 
worships himself — his body, his brain, the fibre of 
his mental and muscular strength. To hold high 
one's purpose, one's destiny — to exalt, under all 
circumstances of oppression or disaster, the star of 
the unconquerable will, the ideal of a personal liberty 
absolute, inviolable, master of all space and all eter- 
nity — this is to partake of those vital attributes 
with which the Supreme Being has endowed man- 
kind, the perfected creation of the universe ; never- 
theless it fails of the perfect truth. A liberty which 
rejoices in such limitations as are beneficent only, — 
which seeks to conform to the ultimate conception 
of immortal truth and owns its accord with the will 
and purpose of the Great Founder of the human 
race — this, after all, is the only rational liberty 
which should guide our lives. 



CHAPTER IX 

THREE DEPARTMENTS OF GOVERNMENT 

OUR Revolutionary sires pursued steadily 
the idea that the three great departments 
of government — Legislature, Executive and 
Judiciary — should be kept forever separate and 
distinct. This idea found prompt expression in 
Virginia's bill of rights, and other States of the old 
thirteen embodied the maxim in their written in- 
struments. The final paragraph of the Massachu- 
setts declaration is in phrase stately and sonorous: 
" In the government of this Commonwealth, the 
legislative department shall never exercise the 
executive and judicial powers or either of them : the 
executive shall never exercise the legislative and 
judicial powers or either of them : the judicial shall 
never exercise the legislative and executive powers 
or either of them; to the end it may be a govern- 
ment of laws and not of men." 

Applying the same idea without dogmatic an- 
nouncement, the framers of our Federal constitution 
gave bolder practical range to such separation of 
powers than any State instrument of earlier date, 
and exemplified before the whole people the wisdom 
of doing so. To this very day fundamental separa- 
tion and independence are upheld constantly; the 
maxim appears and reappears in our later State 



DEPARTMENTS OF GOVERNMENT 183 

constitutions; nor has modern political science 
devised any radical departure from such a 
theory. 

The maxim itself one constantly associates with 
Montesquieu, whose " Spirit of Laws " circulated 
among our colonies in an English translation during 
the St amp- Act times, its learned author having died 
a few years earlier. Montesquieu was a wide traveller 
and an accomplished scholar, combining the quick 
and profound penetration of a Frenchman with the 
urbanity and ease of one well-born and independent 
in fortune. Of him it has been said that he charmed, 
instructed and never offended ; that he lived simply 
and gave his large leisure to the edifying of his 
fellow-men. His famous essay, the ripe product of 
international research and observation, was the 
quintessence, so to speak, of political ideas ancient 
and modern ; and British institutions, which he had 
studied admiringly on British soil — himself the 
liege subject of a French monarch as long as he lived 
— doubtless influenced him. England herself in- 
clined somewhat to the separation of powers; and 
Sir Henry Vane, some thirty years before Montes- 
quieu was born, was seen pleading to Cromwell that 
the British executive and legislature should be kept 
apart. 1 

Indeed the recognition that fundamental powers 
should be separated accompanies fitly every es- 
tablishment of popular government as liberty's 
peculiar guaranty. The Greek Aristotle, in his 
Politics, had distinctly defined to the ancient world 
the three appropriate departments of a republic 

1 Vane's " Healing Question " (1656). 



184 IDEALS OF THE REPUBLIC 

as deliberative, executive and judicial — a de- 
scription imperfect, only because legislation in 
a representative instead of a collective assembly 
had not then been invented. It is only as the 
ancient republic disappeared by absorption into 
the rule of the strong and masterful autocrat of the 
next and mediaeval period — the Caesar, the Kaiser, 
or as we best know him to-day, the Czar, words all 
one and the same in etymology — that such an idea 
lost its appropriateness. Yet in the sequence of 
modern historical events and their development, we 
of America may well identify this maxim by the 
name of Montesquieu and congratulate ourselves 
that colonial government, as administered here by 
Great Britain while British supremacy lasted, em- 
bodied a distinct type of separated powers which 
we ourselves wrought presently into a form more 
symmetrical and more enduring, to suit ourselves. 



It is not, however, the separation alone of powers 
for which free government contends, but their 
consistent independence of one another in political 
action. And it was this latter respect in which the 
Montesquieu maxim failed most of application 
abroad in Montesquieu's own day. The monarch 
or protector — the Charles Stuart or Cromwell — 
the British king's provincial governor here in the 
American colony — was often seen at variance with 
the legislative assembly; which assembly alone, or 
a single House of Commons, whether at home or in 
America, represented as a rule the people. Hence 
we find Vane, in the seventeenth- century tract 
which I have referred to, contending in clear opposi- 



DEPARTMENTS OF GOVERNMENT 185 

tion that the executive power should be even sub- 
ordinate to the legislative. 

At the present day Great Britain, through the 
agency of a ministry, rules the realm after some 
such theory as this last. The monarch no longer 
strives individually against Parliament to maintain 
his prerogative. For ceremonious state, to be sure, 
he still holds court, and he makes ceremonial appoint- 
ments ; but his sceptre is held in trust by a ministry 
which defers absolutely to the legislature, or rather 
to the Commons. And such was the inclination in 
most of our American States when shuffling off the 
coils of colonialism ; to the local legislature of one or 
more houses was committed the control of the other 
two departments, as the people's exponent par 
excellence. But New England colonies had known 
something in practice of an executive and legislature 
both equally derived from the people, notwith- 
standing British authority ; and hence Massachusetts 
in her constitution brought out forcibly, as we have 
seen, the idea of making the three great co-ordinate 
departments of government independent of each 
other as well as separate, — all of them being 
derived from the people, the true fundamental 
source of political authority. 

Such was the idea, in fact, which by 1787 had 
made such progress in this new world that the 
written constitution for our whole Union applied it 
confidently. In that grand instrument of gov- 
ernment drawn for the combined people collectively 
of the commonwealths, we find the Legislature, 
Executive and Judiciary organized as decidedly 
distinct and independent in their operation though 
co-ordinate. Such finally has grown to be our 



186 IDEALS OF THE REPUBLIC 

native conception for State and United States 
schemes of government alike : all sovereignty lodged 
essentially in the people; all three of the grand 
departments responsible apart and fundamentally 
to the people, both practically and theoretically. 
For in theory even, far in advance of full practice, 
did our lovers of liberty recognize that all sovereignty 
resides originally as of right in the whole body of 
the voters. 

Both independence and separation of these funda- 
mental co-ordinate powers, therefore, is America's 
teaching of to-day. But this, let us bear in mind, 
applies merely to the organization of a republic, a 
commonwealth, or a union of commonwealths. 
When we deal with municipal or other local public 
corporations within a commonwealth — with cities 
or counties as we have them at the present time — no 
such three-fold separation of governing powers seems 
needful or desirable. 



The first three articles following the preamble in 
our Federal constitution distribute the fundamen- 
tal powers of government, though without dogma- 
tizing, conformably to the Montesquieu maxim, as 
States had already done, but far more boldly and 
appropriately in some respects than any State had 
hitherto seen fit to apply the precept. And here, as 
States themselves had set an example, the Legisla- 
ture held the first place in classification, preceding 
the Executive. The somewhat later constitution of 
the first French Republic gave to the legislature the 
same precedence; and this, says Paine in his " Rights 
of Man," is the natural order of things. 



DEPARTMENTS OF GOVERNMENT 187 

Indeed, in England's political philosophy, two 
hundred years or more ago, the legislature seemed 
almost synonymous with popular sovereignty itself. 
Locke observes of legislative authority — and 
Hooker before him had written to the same purport 
— that this is not only the supreme power of the com- 
monwealth, but sacred and unalterable in the hands 
where the community have placed it. For neither 
separation of powers nor the right of a people to 
define by fundamental charter was well compre- 
hended by those writers. Parliament had already 
become the great representative body in England, 
so far as the people were represented at all. In the 
House of Lords sat the successors of those mediaeval 
barons who had wrested from King John the Magna 
Charta, with bishops and nobles generally who were 
close to the royal court; but modern prestige 
attached rather to the House of Commons, whose 
nearer derivation was from the people. Yet these 
commoners, whether members or voting constituents, 
were mainly English freeholders, — the yeomanry, — 
men devoted to land and to the principle that taxes 
ought not to be laid and collected without their 
tax-paying assent. Trade or the wealth derived 
from commerce and mercantile pursuits, though 
taxed, was hardly yet represented in that body; 
and still less was the laboring class who paid no 
direct taxes at all. But social progression since the 
seventeenth century has made wealth powerful, 
however derived ; manhood suffrage and recognition 
of the moneyless toilers coming also, but coming 
last and slowest. The House of Lords and House 
of Commons in Great Britain were of separate 
origin and establishment. 



188 IDEALS OF THE REPUBLIC 

We should bear well in mind that the ancient 
world had no conception of a government vested in a 
body of barons and nobles; much less in a legisla- 
tive assembly composed of representatives of the 
people. 1 A plebiscite or popular referendum gave 
general sanction to laws in the Roman republic; 
while various executives of somewhat abnormal 
origin served as checks upon each other in the name 
of one set of people or another. But there grew up 
a Roman Senate, with elders of wisdom and social 
supremacy who assembled for deliberation, as the 
medium through which all affairs of state had to 
pass. Hence the dignified name of senator comes 
down to modern times with a mixed meaning, as 
appropriate whether for council, on the one hand, to 
approve or support an executive policy, or, on the 
other, so as to review the legislation of a larger and 
more tumultuous assembly; in either case giving 
poise and stability to administration, whether im- 
perial or popular. Senators might be appointed by 
a monarch or chosen instead by popular vote; but 
in either case their selection was for high distinction 
and their body was small comparatively and dis- 
posed to discuss and deliberate in secret. Adaptive- 
ness must be the inherent trait of such a gathering; 
and hence among the grand vicissitudes of Roman 
history we find the Senate in earlier times the bul- 
wark of family influence, the proud symbol of 
republicanism and champion of the people; but in 
liberty's later and degenerate age, the mere mouth- 
piece of an emperor's proclamations, with neither a 
plebeian mass nor a powerful aristocracy to give it 
coherence, and having only the semblance of dignity 

« Mont. Bk. XI, c. 8. 



DEPARTMENTS OF GOVERNMENT 189 

and a traditionary glory to justify its prolonged 
existence. 

The Roman comitia, or formal assembly of the 
whole people, worked well enough while Rome was 
unpopulous and contracted in territorial space; 
and so with aggregate gatherings in the various 
small republics of ancient Greece. But as Rome 
expanded into Italy the real and the spurious voters 
were hard to distinguish, and the popular assembly 
became a mob, tumultuous and disorderly, whose 
passions were played upon by demagogue orators 
and their wills misguided by organized plotters with 
corrupt and cunning schemes of their own to carry 
into operation. For crowds that assemble to be con- 
vinced may yield unexpectedly to passionate im- 
pulse. 

Local self-government affords the primary school 
for popular sway in a state or national jurisdiction, 
and it is there that all training for free citizenship 
should commence. Such self-government prevailed 
in Great Britain in the times of the Stuarts and it 
took ready root in our several colonies when trans- 
planted by British contemporaries who settled here. 
But to take our own town or county meetings of 
the inhabitants, Americans went far beyond their 
British progenitors at home in bringing vote, debate 
and public resolutions to bear upon immediate 
politics. Our colonial legislatures were clearly 
representative of the town or county constituencies 
which chose to such a body. In Great Britain, on 
the other hand, as Trevelyan tells us in his History 
of the Stuarts, Charles II, despite the exile of his 
youth and the tragic death of his father, struggled 
for an absolutism which might altogether dispense 



190 IDEALS OF THE REPUBLIC 

with Parliament, as in France. The very plan of 
representation in England's third estate was not 
plebeian in that epoch so much as squirarchal. But 
as to town or county units of self-government, 
British suffrage, such as it was, set up mayors, 
aldermen and the lesser dignitaries for local ad- 
ministration; and so, too, in these colonies from 
earliest times, selectmen, town or county clerks and 
treasurers, and the minor functionaries in local 
affairs down to hog reeve and constable. Yet, 
whether here or in the parent country, one gave 
otherwise his vote — usually by word of mouth — 
simply for the representative of his constituency to 
serve in assembly or convention, and there his self- 
governing capacity in general politics ended, ex- 
cept where the right of the voters to meet locally 
and instruct the local representative was recognized 
besides. Such is the apprenticeship, such are the 
journeymen of democracy; and as Tennyson de- 
scribes those earlier simple constituents in his own 
land: 

■ They think the rustic cackle of their burg 
The murmur of the world." 

Within such narrow confines, while the highway 
or school tax or a bailiff's court might engage the 
voter's zeal, most broad operations of the govern- 
ment soared proudly above him, save where, by 
resolutions in public meeting or on the next polling 
for the legislature the will of a representative might 
be coerced or influenced. In America a local candi- 
date for the legislature came usually from among 
his local fellow-citizens. But in Great Britain, under 
the practice prevalent to this very day, one might 



DEPARTMENTS OF GOVERNMENT 191 

be chosen to the House of Commons whether living 
among his constituents or a non-resident ; and hence 
an English ministry, in Sir Robert Walpole's time, 
found boroughs ripe or rotten for returning such 
partisans as it needed; while to a date very recent 
almost any aspiring University man with money 
and influence might work his way into Parliament 
by employing an attorney in some convenient dis- 
trict which he had never seen, to conciliate old 
families, manipulate the voters and conduct a can- 
vass for him. 



The historical origin of our legislature is obscure. 
Most likely the Lords and Commons sat formerly to- 
gether in Parliament, but afterwards separated. 
The lords or nobles were most intimately allied with 
the king, but deputies or burgesses gained great 
advantage through the power to grant and originate 
supplies and subsidies. Great Britain's Parliament 
corresponded with the States General among con- 
tinental nations, such as the French monarch con- 
voked in 1789 after the lapse of a century and three 
quarters. Blackstone, citing the Wintenagemote 
under the old Saxon heptarchy, and the diets of 
Germany, Poland and Sweden, opines that general 
councils of a sort were coeval with the English 
kingdom itself. At all events, King, Lords and 
Commons grew into a joint mechanism of govern- 
ment in that country, all change of relative au- 
thority coming by slow precedent. 1 

England has its "King, Lords and Commons," in 
the familiar phrase, by way of a combined legisla- 

1 iBl. Com. c. 2. 



192 IDEALS OF THE REPUBLIC 

ture. Anciently, it is said, the King of England 
enacted laws with the advice of his council. Statutes 
were then based upon the humble petition of the 
C : inmons, which the monarch answered with the 
advice of his council; and from such petitions, as 
entered on parchment rolls with the answers sub- 
joined, judges drew up all formal enactments. 
During the reign of Edward III the joint right of 
legislation in the King and the two Houses of Parlia- 
ment was first established firmly, and by the close 
of Henry VI bills were at once introduced in the 
form of acts according to the modern method. 1 
England preserves to us (i) the unwritten common 
law of custom immemorial, as denned by decisions 
in the courts; (2) the statute laws, written and re- 
corded, of the legislature itself, which transcend all 
custom. Judges cite precedents so as to trace the 
course of custom through centuries, while Parlia- 
ment in its omnipotence orders absolutely, at any 
session, whatever is not naturally impossible. I: 
may do anything," as some have said, " except to 
make a man a woman or a woman a man ; " nor is 
even that exception sure. Custom or the common 
law, for aught we know to the contrary, may have 
been largely derived from ancient enactment, from 
statutes gone to dust whose origin and purport are 
lost to history. 

What interests us to observe of the modern 
British Parliament is that, while the influence of the 
House of Commons has vastly gained, that of the 
House of Lords, or peers temporal and spiritual, has 
lessened, and that the King himself by present 

x iBl. Com. 182. Dwarris Stat, introduction. 



DEPARTMENTS OF GOVERNMENT 193 

custom can only approve or disapprove absolutely 
what the two Houses may have agreed upon. To 
originate revenue bills and to devise and frame all 
schemes for taxation is the grand peculiar function 
of representatives of the people. The House of 
Commons will not allow the Lords any power over 
such measures but that of accepting or rejecting; 
amendment is prohibited. Herein American prac- 
tice takes a wide departure. As to our Congress, 
the Senate so freely exerts the right to amend, that 
at the present day it will supplant positively what 
the House has of right originated, and in conference 
compel its own substitute. In States, too, the time- 
honored privilege of a House loses its force, for that 
body is no longer the sole exponent and representa- 
tive of the people's will as common in colonial times, 
but each branch of such legislature virtually repre- 
sents the people ; and hence, our State constitutions, 
many of them, permit revenue bills, like any other 
legislation, to originate in either branch. Of the 
executive veto as America knows it to-day I shall 
speak presently ; our statutes are usually completed 
by an executive signature; yet, most assuredly, the 
power of President or governor to approve or dis- 
approve bills absolutely does not and never did 
exist in free America. According to Blackstone, 
however, King, Lords and Commons made in 1775 
the combined Parliament of the British realm ; and, 
despite all opinion or practice to the contrary, the 
English have adhered to that principle ever since. 



I have alluded to the omnipotence of the legisla- 
ture, as our forefathers regarded it in Revolutionary 



194 IDEALS OF THE REPUBLIC 

times. 1 when such a body seemed the sole palladium 
■:: the people. Our united concerns were long 
carried on by a Continental Congress of a single 
house, which in a sense assumed the functions of a 
small and secret convention. The turmoil of a 
single-chambered body was perceptible in Pennsyl- 
vania and Georgia before the first stage of American 
commonwealth had run its course; while clumsi- 
ness of action with the encroaching and aggrandizing 
tendency of all legislative bodies, whether consisting 
of one or two houses, grew conspicuous. Patriotism, 
like loyalty, attaches itself in the long run to individ- 
uals who lead and inspire, and not to the combined 
mass of an assembly; men thrill at concrete and 
personal achievement. 

Representation applies at the present day, under 
our State practice and theory, so as to make both 
Senate and House of a Legislature, and the Executive 
besides, representative of the commonwealth, by 
one aggregation of voters or another. That once 
happy composite of the many and one, for a contrast 
of Senate and House in the L'nited States Congress, 
finds no counterpart in the homelier political fabric 
of the States themselves : to offset property repre- 
sentation to that of numbers was once tried locally 
but it proved unpopular. The arithmetical census 
plan, which in our own day creates artificial and 
changeable districts in place of the old social con- 
stituency of town and county, strains local pride 
and affection to the utmost and takes from repre- 
sentation much of its pristine pride and dignity. 
The village Hampden has passed. Yet to take the 
political drift as it now looks to us, periodical 
*Smfr*i p. 137. 



DEPARTMENTS OF GOVERNMENT 195 

apportionment by numbers with scientific exactness 
in districts periodically defined, seems the basis 
destined for our democracy through centuries to 
come. With voting inhabitants leaving the old 
rural environs and grouping in cities for a residence, 
as they do so greatly in these days, anything like 
the old system of town equality in politics or an 
unchanging apportionment by numbers becomes 
intolerable. 



Concerning Congress, the text of our Federal 
constitution remains unchanged to this day, and in 
the exercise of a wide and supreme discretion our 
legislature at Washington manages the vast and 
increasing business of the nation after rules and 
methods of its own which each branch is at liberty 
to change. Continuous sessions of Congress we 
have scarcely known; hence one long session of 
indefinite length alternates usually with a short 
and over-crowded one; and hence, too, extra sessions 
or prolonged regular ones serve for emergencies 
only. The anomaly of our whole national system 
has thus far been that elections and the responsible 
work of those elected do not fit together ; both long 
and short sessions find excuses for postponing 
action; and to make incongruity worse, a new 
Congress, with its newly chosen House, seldom 
meets to organize and take up business at all until 
more than a year after public opinion has expressed 
itself at the polls. Hence the representative of a 
district takes his innings at Washington almost 
forgetful of what his constituents had chosen him 
for, and intent already upon the chances of a next 



196 IDEALS OF THE REPUBLIC 

election. The more vast and perilous its responsi- 
bilities, the more dependent does Congress become 
in consequence upon the shaping of its work in 
secret committee rooms or through the pressure of 
a masterful clique. 

Democracy has done stronger work in our modern- 
ized State constitutions. A popular dislike of 
legislative dominance in affairs — of all caucus and 
log-rolling methods of government — began to ap- 
pear early in these instruments; and most of the 
hampering constraint imposed to-day upon that 
department aims to correct abuses which became 
manifest. State workings are watched and State 
constitutions remain open to speedy amendment, 
aside from mere statute. Both legislature and 
administrators enter promptly upon their work after 
the people have chosen at the polls, and legislatures 
are mostly urged to hold brief and unfrequent 
sessions, despatching the public business. Con- 
straints increase of late years rather than diminish; 
and reform is upheld, not by new States alone, but 
by many of the oldest and most conservative of the 
Union. In short, what an eighteenth-century leg- 
islature might have chosen to do or leave undone, 
under its own repealable rule or enactment, the 
fundamental law in most States now commands 
peremptorily. If it be objected that all such hamper- 
ing provisions show an increasing distrust of the 
people's representatives, their wisdom or honesty, 
we may reply that distrust is generated among a 
supervising constituency, confident of its own better 
understanding how free government should be con- 
ducted, and well assured of its own inherent honesty, 
and its capacity to give instructions. There is 



DEPARTMENTS OF GOVERNMENT 197 

scarcely a change, such as I allude to, in legislative 
power and procedure, which is not on the whole a 
change for the better. 



I have elsewhere commended the popular initia- 
tive and referendum as a developing factor of modern 
government by the people. 1 Whatever tends to 
instruct and interest the great body of inhabitants 
in guiding their own politics and political destiny 
deserves encouragement. But the people them- 
selves should be interested and well-informed, for 
close participation in such direction, and not merely 
honest and well-intentioned. It is chiefly as to 
constitutions and constitutional change that general 
initiative or referendum may admirably apply; for 
a whole commonwealth may most fitly discuss and 
decide upon the basic institutions they are to live 
under. But as to legislation, voters are not so readily 
informed, so interested or so capable of discriminat- 
ing among the mass of proposed measures, as honest 
and intelligent representatives such as any con- 
stituency may have put forward on its behalf; nor 
is the actual choice of unworthy representatives to 
sit in House or Senate to be condoned by thwarting 
their deliberate enactment at the polls. Hence 
initiative, if compulsory in legislation, may prove 
destructive of orderly government; while referen- 
dum, even at a legislature's own instance, seems best 
applicable to acts of purely local reference or for 
local option, or where the whole commonwealth is 
aroused and positive concerning its own wishes. In 
this latter case an Executive veto may often apply 

1 Supra, pp. 84, 139. 



198 IDEALS OF THE REPUBLIC 

the corrective to bad legislation more impressively 
and convincingly than any referendum vote on a 
popular submission. Public opinion, moreover, may 
best prevent or shape legislation of stirring interest, 
by public meetings and public instruction of the 
local representative; for all legislation, to be good 
and safe, should conform to the wishes of repre- 
sented constituencies, rather than to that of the 
commonwealth at large, in any test by majorities. 
Once more, in any State, emergencies may require 
that action by the legislature be prompt, certain and 
irresistible ; and in such a case any popular initiative 
or referendum proves obstructive and mischievous. 
Just as too meddlesome a public regulation of busi- 
ness is sure to ruin it by disheartening private 
energy and investment, so may sporadic interference 
by the vast body of voters with the responsible 
agents of the public, legislative, executive or judicial, 
bring efficient government to a stand-still. 



Now as to our second grand department of gov- 
ernment, the Executive. In American conception, 
it is some individual citizen, clad in the full panoply 
of official power by his fellow- voters, who inspires, 
if at all, as their chosen guide. Revolution was 
fought and won by our forefathers without such 
delegated guidance for the whole Union; and yet 
they felt it in the person of that superb fellow- 
citizen and Virginian who, placed in military com- 
mand of our united forces at the outset, was never 
superseded, and surrendered nothing but his own 
commission, nor that until peace with independence 
had been secured. 



DEPARTMENTS OF GOVERNMENT 199 

And thus came into being that prime national 
incumbent, now of immense power through little 
more than a century's space, the President of the 
United States. Our Federal constitution confers 
upon him strong powers, strong independence. He 
is sole representative of all the States, of all our 
people, in their combined majesty, under his cre- 
dentials of election. He holds public intercourse 
with other nations, supervises the mutual concerns 
of a vast Union of States, rapidly growing in wealth, 
domain and numbers ; he controls the patronage for 
increasing cohorts of civil office-holders, and posts 
great forces by land and sea as commander-in-chief 
of army and navy. He is moderately restrained in 
making treaties or the chief appointments by a 
Senate which may approve or disapprove, and yet 
cannot compel him to name a person or initiate a 
negotiation at its own behest. In short, the Presi- 
dent of the United States is the prime and efficient 
factor and initiator of our national policies, domestic 
or foreign; and with the immense patronage at his 
command he may, if gifted with political tact and 
discretion, conduct effectively the movements of 
great national parties. Congress, with its own 
leaders typical of the various States, may, it is true, 
by laws fundamentally permitted, marshal and 
combine, so as to frustrate a personal ambition in 
this respect or compel a policy of its own ; nor is the 
presidential incumbent himself always forceful. 
Washington led for the whole people, disdainful of 
parties; Jefferson, Jackson and Lincoln administered 
with vigor and were strong party managers besides ; 
while Madison, Pierce, Hayes, and others, raised to 
supreme station only as secondary lights, yielded 



200 IDEALS OF THE REPUBLIC 

for the most part to leaders abler for originating and 
left Congress to shape a policy for them. 

With regard to the governor of a State, the first 
impulse of free America was to curb and restrain his 
deputed functions. For this Executive was mostly 
an inheritance from colonial subjection, and colonists 
had chafed under the arrogance of Crown officials. 
Hence, for the most part, outside of New England — 
where colonial governors chosen by the people had 
been exceptionally familiar — our governor was at 
once made subordinate to the legislature; and in 
eight States out of thirteen his very choice was 
vested in the members of that body. Pennsyl- 
vania's first executive was a sort of directory known 
as ' ' President and Council. ' ' When popular elections 
came about, the rule prevailed far into the nine- 
teenth century that elections at the polls should be 
by majority vote; and a mere plurality could not 
suffice for a popular expression. Hence, if no candi- 
date for governor received a full majority of the 
votes cast, the election as between highest candidates 
was thrown into the legislature. Such a possibility 
to this very day threatens in turn the legitimate 
title of a President of the United States ; and in the 
memorable instance of 1825 a minority candidate 
was actually chosen by the House at its permitted 
discretion. But States for themselves have quite 
generally adopted the plurality rule so as always to 
make the popular preference at the polls decisive 
upon a single test; and this, on the whole, seems 
wise. 

We abhor the idea of making our Executive a 
life office; for at all times competent men can and 
ought to be found who will accept exalted station at 



DEPARTMENTS OF GOVERNMENT 201 

the hands of their fellow-citizens. American citizen- 
ship of itself qualifies for public life; and some of 
our ablest chief executives we have seen called to 
the head of affairs from private life with little or no 
political experience previously. Re-ineligibility after 
a fixed period of continuous service is the rule in 
many States. But some constitutions omit restric- 
tion in that respect; and so it is notably with our 
Federal instrument in its still unaltered text. 
Washington, however, set for his countrymen the 
just and memorable example of retiring from the 
Presidency after he had served two terms; and 
popular liberty will stand far safer if all successors 
make firm observance of such a rule, as they have 
hitherto done. Jefferson had objected in 1787 to 
the want of a positive barrier in that respect in our 
Federal text; his idea then being that a President 
should be chosen for a seven years' term once and 
for all ; but, accepting the precedent set by Wash- 
ington as an unwritten law to be forever binding, 
he commended, upon his own experience, the substi- 
tute, as he expressed it, of an eight years' service 
with a midway submission to the voters. To forsake 
past example so as to leave our Presidency open for 
successive re-elections would be, at this day, to set 
this nation on the high road to monarchy. 



As time advances and the spectacle of a strong 
Executive makes deeper impression, even the gover- 
nor of a State has gained in stability and indepen- 
dence as the people's tribune. The legislature no 
longer elects him; he, with the lieutenant-governor 
and such high officers, besides, as secretary of state, 



202 IDEALS OF THE REPUBLIC 

treasurer, auditor, comptroller and attorney general, 
is now chosen at the polls as representative of the 
people in the broadest sense. Where at first elections 
were annual we find them biennial rather ; and while 
a governor once stood for re-election after a single 
year, his term now extends commonly to at least 
two years ; while, in about half of our States, he is 
chosen for three or even four years. Even in 
Massachusetts, where the old annual election still 
prevails, party custom favors a re-election for two 
or three successive years. Lieutenant-Governors 
are favored in States, after the nation's example of 
Vice-President; and this not so much, in either 
case, with a view to a contingent vacancy, as to 
conciliate conflicting elements and strengthen the 
party ticket at the polls by presenting a double 
front. While simply exercising his normal func- 
tions, the Vice-President or Lieutenant-Governor is 
a colorless dignitary, with neither substantial power 
nor patronage. 

The trend of experience, State and national, has 
been to free the Executive from trammels of sub- 
ordination to the Legislature. Both Executive and 
Legislature must depend henceforth upon the 
voters and public opinion, after their separate 
spheres of influence; and thus does representation 
of the people broaden considerably its original base. 
A governor is to take heed that the laws are properly 
executed. His salary cannot be increased or dimin- 
ished during an existing term. He may convene the 
legislature on extraordinary occasions, make recom- 
mendation by message and adjourn that body 
whenever the two Houses cannot agree. He is 
commander-in-chief of the State militia. He ap- 



DEPARTMENTS OF GOVERNMENT 203 

points or nominates to office. The pardoning 
power, absolute or qualified, is conferred upon him 
in almost every State. 

As for his veto power, this, too, may impose a 
salutary check on the legislature. Executive veto, 
in the absolute sense, has not been tenable here since 
the days of royalty; but a qualified veto appeals 
strongly to public opinion and to the sober second- 
thought, besides, of the Legislature itself, whose two 
Houses may on reconsideration by a sufficient vote 
— larger usually than before — pass the measure in 
question so as to take effect notwithstanding the 
executive objection. The " pocket veto," moreover, 
is discretionary where a legislature adjourns before 
giving the chief magistrate full time to consider 
a bill ; and under some State instruments a governor 
may not only veto items of an appropriation act, 
leaving the rest to stand unimpaired, but may hold 
his general approval in suspense for a stated time 
after the legislature adjourns, avoiding all unseemly 
pressure for his signature such as we still see in the 
closing hours of Congress. President Cleveland, who 
had been allowed such a respite while governor of 
New York, refused to go to capitol hill at all, as his 
predecessors had done, but required all the latest 
bills to be brought to him at the White House for 
approval. The exercise of the qualified veto power 
affords a dramatic spectacle; and nothing which 
the science of free government owes to native in- 
genuity compares with it in effectiveness for checking 
headlong experiment and compelling deliberation. 



The third great department of our government is 



204 IDEALS OF THE REPUBLIC 

the judicial. A distinct and efficient Judiciary for 
the whole Union was set up for the first time under 
our instrument of 1787, and made, after the Montes- 
quieu formula, as independent and distinct in 
design as either Congress or the Executive. In the 
original States apart, that recognized bulwark of 
liberty had been built in colonial times; though 
the scope of its remarkable power in testing all acts 
of legislation by the written charter had yet to be 
revealed. Not to enter into technical details, I may 
observe that inferior courts serve in county or 
district divisions for the main burden of original 
litigation and supervise such police courts or magis- 
trates as take the initial cognizance of petty matters ; 
while original jurisdiction of larger concerns, besides 
all final appeals of whatever kind, whether in com- 
mon law, chancery or probate, or upon constitutional 
points, are vested in a supreme tribunal which 
crowns and unifies the whole. Our Federal constitu- 
tion established a Supreme Court — which in appro- 
priate matters is the highest tribunal of the land, — 
while giving Congress full discretion to erect inferior 
tribunals from time to time; but now most State 
constitutions define specifically the State judicial 
establishment, placing it wholly above reach of any 
legislature. 

Independence of the Judicial*} 7 has come to mean 
with us something quite different from what it 
meant with our ancestors. Its independence of 
Executive and Legislature was surely never greater 
than now ; while, furthermore, judicial interpretation 
of a constitutional text, as fully recognized to-day, 
enables this third department to thwart and frus- 
trate on occasion the will of either or both the other 



DEPARTMENTS OF GOVERNMENT 205 

two. But its former independence of the people, of 
citizens themselves, has largely disappeared; for 
equally with Legislature and Executive, the Judici- 
ary has now been brought under the vigilance and 
control of constitutional conventions. And, more 
than this, advancing sentiment in separate States 
accords to voters at the ballot box the choice of all 
judges from highest to lowest, while judicial tenure 
itself is largely limited to a fixed term of years. 
Hence the Federal plan of appointment by the 
President for life or good behavior remains the 
grand relic of a bygone custom; for scarcely five 
States of the whole Union keep steadily in such 
respects to the old judicial tenure which we derived 
originally from the mother country. 

Whether an elective judiciary, with service for a 
fixed term, be, on the whole, an improvement or not 
in political science, is still a mooted point. Small 
agricultural States, with a sturdy yeomanry, stand 
more favorably in this respect, it seems to me, than 
large commercial ones whose interests are vast and 
complex, and their inhabitants an incongruous 
medley. Federal jurisdiction, so vast, momentous 
and specialized in its scope of litigation, needs, most 
of all, stability beyond all reach of passionate 
politics; it would sink in self-respect and dignity 
were its high incumbents remitted to the periodical 
scramble of national parties and party nominations. 
In States, with their simpler spheres of action, all 
impulse tends to maintain the popular mode of 
election, once entered upon; yet we see already a 
decided leaning towards longer terms of judicial 
incumbency than were favored when the innovation 
began. 



206 IDEALS OF THE REPUBLIC 

Such, then, are the three great departments of 
government as America to-day defines and dis- 
tinguishes them. But government is never, of itself, 
a smooth and thoroughly consistent system ; neither 
can the separation of Legislature, Executive and 
Judiciary be entirely and logically complete. All 
departments should harmonize and cooperate where 
public authority is to be well sustained, like a congru- 
ent chord in music. Hence checks and balances are 
applied to keep one department from encroaching 
upon the others and appropriating more than its due 
share of sovereignty. Thus, as we have seen, our 
Executive exerts a qualified veto and so far may 
check new legislation; and, again, our Legislature 
constrains the Executive by enactments which will 
bind, at all events, if duly passed over his veto ; while 
his treaties and high appointments require usually a 
Senate confirmation. The Judicial*}*, through its 
power of fundamental interpretation, interposes a 
constant check upon both Legislature and Executive ; 
yet the Executive may pardon and remit court pen- 
alties, and a judicial decree may sometimes fail of en- 
forcement if army and navy be withheld. Moreover, 
the Legislature may impeach and remove both exec- 
utive and judicial incumbents after its own process. 

Government, in short, does not claim or reach 
perfection, but seeks rather to conform to the 
customs, the manners, the disposition and the 
inspiration of the times, of a passing age; and good 
government is, after all, but a relative term. Solon 
said well of the laws he had framed for the Athenians : 
" I have given them the best they were able to bear," 
and no wise lawgiver can say more. 1 

1 For further study of constitutional changes in these three depart- 
ments, see Schouler's Constitutional Studies, Part III. 



CHAPTER X 

PARTIES AND PARTY SPIRIT 

WE hear it not seldom asserted as an axiom 
that political parties ought constantly to 
contend in a republic — each watchful 
and critical of the other — in the common interest 
of the people. If this be true, it can hardly be 
thought a normal condition of affairs that keeps 
one of our two such organizations in national 
authority for forty out of forty-eight successive 
years, while the other spends most of its time in 
futile opposition. To me it seems rather that 
parties, through their representative character, natu- 
rally rise and fall, appear, disappear or reappear, in 
State or nation, according as immediate and prac- 
tical issues change and divide the voters; so that 
when any political sect has once converted the 
great majority to its views and carried out the 
reforms which it was instituted to accomplish, dis- 
solution follows absorption, and with general ac- 
quiescence comes a season, longer or shorter, of 
public tranquillity favorable to harmony and a 
welded patriotism. New or reorganized parties 
come later, under conspicuous leaders who rally 
their followers to promote new issues. 

Such an era of tranquil subsidence followed our 
peace of 1814 with Great Britain and Napoleon's 



208 IDEALS OF THE REPUBLIC 

downfall. That peace detached this young Union 
fin a ll y from European domination and set lis forever 
free to sail our independent course in the broad 
::ean of destiny. That era, known in history- as 
"the era of good feeling,*' which lasted about ten 
years in fact and embraced more especially the long 
administration of President Monroe, with its h; r 
ideals and recuperative energy — was perhaps the 
most singularly serene and harmonious, the mis: 
promotive of national warmth and affection that 
America has yet witnessed. Those years stand out, 
for the most part, with party passion surging on 
either side, before and after. 

I have long believed, moreover, that had Presi- 
dent Lincoln 's life been spared thr : ugh the full period 
of that second term for which he was chosen to serve, 
the year 1S66 would have lifted upon another green 
oasis and resting-spot for our political caravan, a 
second era of national good feeling; with the olive 
branch and sectional reconciliation for permanent 
trophies. Old parties, old antagonisms, would 
thus have yielded place to the revival of attachment 
to that Union indestructible, whose first and fore- 
most of political needs was a generous adaptation to 
new social and economic conditions. With his 
marvelous tact, patience and compassion, Lincoln 
would have sought, like the earlier Monroe, to 
assuage old animosities and restore general confi- 
dence; while keeping Bourbon leaders from re- 
organizing, he would have rested the government 
upon its friends, holding both radicals and reaction- 
aries in prudent check; and in all this he would have 
carried the people with him. New racial issues 
following emancipation, such as negro suffrage, 



PARTIES AND PARTY SPIRIT 209 

might thus have awaited the educating course of 
time, opportunity and local conviction. 

I go even farther and assert the belief, founded in 
a clear personal recollection of those times, that 
General Grant, on succeeding to the Presidency in 
1869, might have brought in that same era of good 
feeling, such as the majority of both North and 
South desired at the time to establish; and this 
notwithstanding the unfortunate collision which 
had arisen between his next predecessor and Congress. 
He was indebted to no party for his first nomination ; 
for the loyal voters of the country, regardless of 
political affiliation, called him to the chief magistracy, 
like another Washington. The real platform of 
1868 was expressed in his own terse words, " Let 
us have peace," — which in truth was the substance 
of what plain citizens then hoped for. 



I do not mean to disparage party spirit in a Re- 
public, but what I contend for is the just subordi- 
nation of all party spirit to love of country; and 
besides, that each party organization should adapt 
itself to circumstances and to the issues normally 
uppermost. In a nation like ours " Republican " is 
a good party watchword, and so is " Democrat "; 
but the name, the symbol of any party, should 
consist with adherence to definite and consistent 
aims. We rightfully organize a party, not for the 
sake of organization, but to promote some immediate 
measure or policy which we believe sound and 
salutary. A party which has no inherent principle 
left but that of the loaves and fishes has no good 
reason to exist; and men bound together merely 



210 IDEALS OF THE REPUBLIC 

for the spoils of victory, who are divided among 
themselves in political conviction or are without 
political conviction at all, framing their plausible 
platforms with gilded phrases to catch unwary- 
voters, are among the meanest of hypocrites, for 
their hypocrisy pretends to patriotism. " Measures, 
not men," may be a captivating cry. But men we 
should elect who stand for measures; who are 
devoted to the purposes and policy we desire and 
whose lives exemplify a sincere and honorable 
leadership. It is " men and measures," " men with 
measures," that give to politics a vigorous vitality 
under free government. 

And herein we may perceive a strong difference 
between sects as we have them in politics and relig- 
ious sects. The political policies appropriate or 
attainable in the history of a nation or common- 
wealth may differ at different epochs ; for a reform- 
ing zeal in the pursuit of government is directed to 
the immediate practical conduct of affairs. But a 
Christian sect stands for some particular creed or 
tenet ; and fixedness on a certain point of faith and 
conscience is its real reason for maintaining a special 
organization at all. Says the Hampton singer, 
glorying in such a fixedness : 

11 A Baptist I was born and bred, 
And when I am gone there's a Baptist dead." 

But in this American world of ours we fairly acquiesce 
ere this in the idea of political equality, save as 
perhaps hindered by racial or sexual conditions. 
We are all Republicans, we are all Democrats; and 
to argue steadfastness to such and such a party as 
though it interposed some lasting fundament of 



PARTIES AND PARTY SPIRIT 211 

faith is to prove our own narrowness of vision, our 
credulity, at the cost of that better element of loyal 
citizenship which after all stamps the image essential. 
Republican or Democrat, then, may still be names 
to conjure with, but the essence of that conjury is 
deception; and if once their logical distinction was 
material in this country, it is material no longer. 

Lord Rosebery, with something of a sneering 
cynicism, has observed of the English parliamentary 
system, in a recent book, that it requires for its 
working two sets of protagonists. One set, he says, 
does the administrative work of the country and 
defends what is done ; the other is anxious to do that 
work and in the meantime opposes what is done. 
" To the one side all is white; to the other all is 
shade, all is black ; there is no twilight and no gray." x 
If this statement be true it is largely so because 
English government sets forth Parliament as a grand 
spectacular forum, for debate and interpellation, — 
as a coliseum of forensic rivalry for the prizes of 
official station. Now in the United States we have 
a political system far different and far more complex. 
There is a national arena of politics and a State 
arena; the immediate representatives of the people 
are various and serve in various departments of 
government ; the interplay of executive and legisla- 
tive, or the executive conduct apart, interests and 
distracts; and neither Congress nor any State legis- 
lature can focus long the public gaze. Even the 
mayor of a large city may at times draw strongest 
the attention of the people. Yet something of that 
same cynical observation applies perhaps to our 
own party divisions when we distinguish the " ins " 

1 Life of Lord Randolph Churchill, c. XIII. 



212 IDEALS OF THE REPUBLIC 

and " outs " — the men who absorb official patron- 
age and the men who would take it from them. 
This is the reductio ad absurdum of political conflict; 
it resolves all contest for principle into a degrading 
scramble for place and promotion. And some of 
our politicians, we fear, have no higher purpose to 
carry out ; they are advocates of whatever doctrine 
may best advance their interests and put them on 
the winning side. 



The point I would most wish to emphasize regard- 
ing political parties is, that in their just course and 
scope they emanate properly from the people them- 
selves and are organized by competent leaders of 
opinion to educate and combine voters for some 
public purpose of immediate importance; so that 
when training and discipline bring right results and 
the prime purpose has once been fully achieved, 
disbandment should be in order, or at least a period 
of furlough and inaction, until other measures of 
policy, duly formulated, other immediate problems 
induce new combinations with a new recruitment 
and discipline under correspondent leadership. By 
such means public opinion among a self-governing 
people takes its legitimate range and the preference 
of the majority consistently prevails. It is true that 
traditions and old habits of association keep men 
conjoined; the fame of dead leaders or an enthusi- 
asm for living ones will inspire followers to continue 
the line of march heedless of a new direction; and, 
more than this, there may be something fundamental 
in the fact of party fellowship which inclines men to 
a permanent brotherhood. Yet all political com- 



PARTIES AND PARTY SPIRIT 213 

radeship for practical political ends is in its true 
sense but temporary; to one mood, one policy for 
government, succeeds another, as circumstances 
may determine ; and all political parties should have 
a flux, an easy capability to resolve into elements, 
to combine or change combinations or recombine, 
as the times demand. Parties should not serve as 
fighters professionally, like permanent standing 
armies, but rather should enlist voters as volunteers 
or militia-men when the call and the emergency 
summon to arms; these serving like good citizens 
while the emergency lasts and then, like good 
citizens, enjoying the fruition of an honorable peace. 
Party, in short, is but an agency for carrying into 
effect the will of the people; for establishing and 
keeping up a genuine rule of the majority; and such 
a will, such a rule, should hold paramount in affairs 
with due regard to the policies immediately de- 
sirable. 

Such was steadily the historical course of political 
parties in our national history through that long 
period of primitive growth and development which 
preceded the Civil War. The agency was employed 
on behalf of the principals. Here, as national events 
moved and national exigencies might require, 
through the space of some eighty years, party after 
party organized and moved into opposing line of 
battle, and then after some decisive campaign dis- 
banded. The very names " anti-Federalist," " Fed- 
eralist," ; ' Whig," once potent, have passed out of 
our vocabulary. And so did that of " Republican," 
as applied in Jefferson's time; this, however, to be 
revived thirty years later for a northern resistance 
to slavery; the name " Democrat " having mean- 



214 IDEALS OF THE REPUBLIC 

while been boldly assumed and appropriated by the 
followers of Andrew Jackson. And, during that 
same period which preceded i860, other lesser 
parties of national scope were born and died — that 
of " anti-masonry," which abhorred all secret com- 
bination; that of " native Americans " or " know- 
nothings," its antipodes in working methods; the 
" loco-focos "; and those lesser anti-slavery com- 
binations of short continuance — the "liberty" 
and the " free soil " parties. 

But the shibboleth of " Republican " or " Demo- 
crat " has availed in national antagonism for more 
than forty years since the Civil War ended. Neither 
political sect stands clearly for the principles that it 
was organized and named to promote. Are these 
two political hosts of boasted name and lineage to 
antagonize still through centuries to come, un- 
reconciled, undisbanded? Are they to take up new 
issues, each with forceful alacrity, upon which both 
followings are divided in sentiment, and on which 
neither can fight with full effect, while they prevent 
their rank and file from recombining naturally? 
On such measures of the day as tariff for protection 
or for revenue only, State rights as against centrali- 
zation, Asiatic expansion, neither party has clear 
and pronounced views. Upon problems of negro 
advancement or Oriental immigration neither posi- 
tively withstands the other. Each bids for popu- 
larity in noisy assaults upon corporations and in 
regulating owners by the non-owners. But con- 
cerning the relations of labor and capital otherwise, 
the disparity of wealth and other dangers of the day, 
both war drums give a muffled or deceptive sound. 
We are reaching a point where policies seem to 



PARTIES AND PARTY SPIRIT 215 

crystallize about a certain personage; and when we 
arrive there, it is time that, like Clay and Jackson 
in a former era, leaders among us who stand for 
definite and contrasting ideas should rally and re- 
combine the voters to meet living issues. 



In one of Anthony Trollope's novels of English 
Parliamentary life x reflections are made upon the 
mimic nature of party encounters on the floor of the 
House of Commons, somewhat in the strain which I 
have quoted from Lord Rosebery ; and this, indeed, 
some forty years earlier. There, statesmen contend 
politically for triumph and advantage, somewhat 
after the bland and courteous fashion of opposing 
counsel in a chancery suit. "It is not so in the 
United States,' ' adds the spokesman of the novelist: 
" There the same political enmity exists, but the 
political enmity produces private hatred. The 
leaders of parties there really mean what they say 
when they abuse each other, and are in earnest." 
Trollope wrote this at a time when we were still in 
the throes of a moral struggle — of our deadliest 
conflict for national existence; and doubtless cit- 
izens North or South, Republicans or Democrats 
by designation, were clearly divided then in aims 
and opinion, and felt their division deeply. It is 
hardly so to-day; and yet at all times American 
politics come and should come closely to the people, 
who feel their own responsibility. Hence, at our 
periodical struggles for national preeminence and 
power, leaders of opposing parties, whatever their 
real pulsation, must respond or seem to respond to 

x Phineas Finn. 



216 IDEALS OF THE REPUBLIC 

the popular feeling, which is naturally sincere and 
often intense and passionate. 

In all politics, party dissensions are largely 
founded upon the jealousies of class or social set. 
Rich and poor oppose, where distinctions of 
fortune are wide and the avenues of opportunity 
obstructed. Aristocrats are disliked by those they 
look down upon and dislike in return. And so, again, 
differences of temperament have their constant 
influence and even descend in families by the law of 
heredity; here is the conservative by instinct, who 
holds by institutions as they are and dreads innova- 
tion; and there, on the other side, is the innate 
radical, always discontented with the present, and 
seeking in change, of some kind, the panacea for 
existing ills. 



I would not be thought to belittle the positive 
importance of party organization wherever great 
ends are to be achieved. What I wish rather to 
impress, is that political parties are naturally no 
more than faithful agencies employed by the voters 
to effect some public purpose or policy which unites 
them in sentiment, under leaders zealous and compe- 
tent ; and that all parties should conform readily to 
the law of such creation. Organization, well accom- 
plished, brings all citizens whose aims are alike into 
effective cooperation. Every educating and pros- 
elyting work needs a strong and sympathetic 
stimulus; voters must be canvassed, the doubtful 
argued with, the friendly confirmed, all who cast a 
ballot exhorted to united action. Meetings must be 
held, halls hired, candidates brought forward, 



PARTIES AND PARTY SPIRIT 217 

principles openly discussed and advertised. Good 
writers and speakers are needful in a cause, good 
managers of details. Or, if the movement is pursued 
rather as a still hunt for success, clubs and leagues 
must be secretly organized and brought into concert. 
Voters should be rallied to the polls on election day. 
All such work requires zealous and competent 
direction and an expenditure of money legitimate 
enough; yet high-minded citizens will give freely 
of their time and service to any such cause, while 
in an emergency honest presses will assist, and men 
of public spirit contribute voice or pen without the 
thought of a money recompense. 

But let us draw the line at legitimate campaign 
and election expenses; for the prodigious sums 
which are to-day collected and lavishly and secretly 
disbursed by political managers at each important 
election — a large proportion, as we lately discover, 
solicited and accepted from corporation managers 
and fiduciaries — become already a menace in the 
land to liberty and honest government. Bribery of 
purchasable voters, graft for solicitors themselves, 
actual corruption at the ballot box or among the 
mean hirelings of politics, explain best such surplus 
outlay. Moneyed contributors, too, have schemes 
for corresponding gain to fasten upon those they 
oblige, — perhaps for corporate advantage but more 
likely for their own selfish hold upon the corporate 
direction. Grafters and jobbers, big and little, 
fasten like leeches to the corpus of an established 
party in power, pretending to be friends of the 
people. Here lurks the danger in our present politi- 
cal methods; strong belligerent forces contend, 
prodigal and dishonest in campaign expenditures, 



218 IDEALS OF THE REPUBLIC 

violators and neutralizers of the right of suffrage, 
despoilers where they profess to promote the general 
good, perverters of the fight for principle into a 
roving warfare for spoils and dishonest advantage. 
Such party directors, instead of leaders of opinion, 
become opportunists in ideas; they watch to win, 
and, winning, do nothing for the public good but 
what they are compelled to do in order to keep a 
control. They trade off their influence ; they make 
compacts to advance those greedily ambitious who 
have solid cash to offer ; they use power despotically 
to compel discipline among compliant followers, 
and they learn to play craftily the game of politics 
with the cards stocked. The downward tendency 
of things in recent national years of accelerated 
wealth and luxury has been remarked by outside 
observers of our republican experiment; but a 
tidal wave may still be trusted, as heretofore, to 
wash out the sinks of iniquity at some indignant 
crisis; for the American people are still virtuous in 
the mass and cherish high principles. 

In the stagnant and morbific pool of politics, 
such as collects when old parties decay and are 
devitalized of principle, stands the mechanism, 
labelled with some historic name, and in charge of 
the so-called party " boss." That Warwick of 
vulgarity makes study of the means whereby honest 
suffrage may be swamped by a floating and purchas- 
able vote cunningly manipulated. His machine 
works easiest in the crowded city, where ignorance 
and vice vie with intelligence and honesty, where 
nobodies count numerically, and men of all sorts 
and conditions abound. He is, quite likely, a saloon 
keeper or turfman by occupation and knows how to 



PARTIES AND PARTY SPIRIT 219 

subsidize vice and sample the police business. With 
neither taste nor aspiration for social position, he 
consorts with the commonest and in a certain gen- 
erosity with the downtrodden displays a redeeming 
trait which confirms his influence. Not without 
talent, he organizes in the shade the riff-raff of 
politics, while some keener and subtler intellect — 
an aspirant of statesmanlike calibre, were he only 
honest — marshals in the conspicuous sunshine 
and leads the promiscuous force to action. The boss 
claims his grosser reward in the hour of victory; 
while the honors of high official station and patronage 
go to the man whose intellectual preeminence makes 
him the more dangerous foe to his country. All 
alliance of such co-workers bodes to the people mis- 
chief irreparable. 

Against the growing danger of party machines 
among us, with machine managers, one check to 
insist upon, at the present time, is that of publicity. 
Public opinion should thwart dishonest selfishness, 
and public vigilance exert a constant scrutiny. Not 
only ought party candidates to declare under oath 
what sums they have spent upon a given canvass, as 
various States already require, but political com- 
mittees and managers, civic, State or national, should 
under heavy penalties, be forced to show sworn and 
audited accounts of their receipts and expenditures, 
that the people may ascertain what sums have been 
expended in each election contest. Perjury, to be 
sure, would still cloak many a dishonest transaction ; 
but prosecuting officers and the courts might aid 
in a true discovery and the present reckless and 
irresponsible assessment and outlay would largely 
disappear. 



220 IDEALS OF THE REPUBLIC 

Whenever a political party has sunk to that low 
level of degradation where the only real policy is to 
trim and tack ostensibly in order to keep in power, 
independence in politics may take its fair innings 
for projecting new reforms, new issues, traced in the 
coming horizon; for around bold leaders, bold 
aspirants, new combinations will gather. A young 
patriot of force and character looks into the future : 
he studies its aspirations, its hopes, its needs, and he 
draws the public, if he may, towards a higher plane of 
conscientious progression. What, after all, are the 
honors of public preferment worth, if government 
keeps to the rut of old routine, and the chariot wheels 
of state drag heavily on through the mire of corrupt 
practice? There is one and only one high incentive 
to a public career, and that incentive is to do 
nobly. 

Independence in politics, however, is rather the 
attribute of that swaying portion of our voters who 
make their influence count for ideals, regardless of 
party discipline. They throw their weight so as to 
keep affairs at an equilibrium; they are honest 
citizens, most of all. They seldom undertake to live 
by politics alone. They do not even hold office, unless 
the office seeks them. They disclaim competition 
for the prizes of high patronage; they cooperate 
rather, at some juncture, with recognized leaders of 
opinion, by money contributions, by committee 
work, by appeal to the voters, by investigating the 
record of candidates, and by aiding as they best may 
by force of example the better cause against the 
worse. They make effective combinations. Un- 
selfish in their attitude, they evince their patriotic 
spirit and disinterestedness. Occasion will arise 



PARTIES AND PARTY SPIRIT 221 

where political elements melt in fervent heat and 
the people may be roused to redemption as in the 
enthusiasm of a religious revival. But the arena of 
such new emotions may long be a contracted one; 
it may comprehend a single town or city, or a single 
State, before the reformation takes anything like a 
national scope. It is something, after all, in favor of 
a government like ours, that every one may exert 
his personal influence to direct its course. 

That political independence precludes, or at least 
obstructs, a steady and successful leadership in 
affairs must be admitted. Parties, after all, change 
slowly enough for public aspirants to define and 
redefine their position or organize anew, and one 
who would rise surely in officeholding through suc- 
cessive grades and maintain his place must keep 
faithful to superiors and associates, and even at 
times be prepared to sacrifice his own preference at 
the party behest. This we concede with some sense 
of shame; and every true leader in these days 
who can accomplish good and yet maintain his 
party standing must be statesman and politician 
both. 

The world has long recognized that in union is 
strength, through Aesop's familiar fable of the bundle 
of sticks. Combination wins in war where scattered 
assaults count for little; and this lesson applies to 
politics as on the battle field. The more that num- 
bers multiply and the magnitude of social operations, 
the more do we find it indispensable to success in a 
given pursuit that resources shall be well organized 
and powerfully directed. All this gives a prodigious 
momentum in combination against which individual 
effort competes in vain. Hence the leaders of reform 



222 IDEALS OF THE REPUBLIC 

must organize not less skilfully than their opponents 
if they would prevail on opportunity. Under prov- 
ocation of misrule, good citizens will rise in their 
might and reassert first principles; but the danger 
is that their coherence may not last long enough to 
bring a permanent betterment. They get out- 
witted in unwonted combinations; after a half- 
victory they confide to inexperience the initiation 
of their plans and leave leaders in the lurch; and 
thus may men of the machine, their former foes, 
come from their lurking place and return to power, 
compelling concessions. Counter-organizers and 
protectors of the people should stand firm and com- 
pact until at least their own trusty representatives 
are masters of the situation. 

We come nearly, the present year, to nominating 
national candidates for each party, who stand not 
only for the same dominant issues but for the same 
moods and temperament in promoting them. Yet 
if any national campaign is worth conducting at all, 
political parties and their leaders should oppose 
on real grounds of opposition, and one great element 
in society should find its exponent as well as another. 
In fact, the two great parties, Republican and 
Democratic, are no longer divided on definite 
principle; each is split up into radicals and con- 
servatives, with corresponding views. But the 
old mechanism remains, and each Presidential 
aspirant seeks to capture one convention or the 
other, that he may have an old organization behind 
him and may appeal to the people as a legitimate 
candidate. Both the present agencies of the people 
have outlasted the issues that created them, and 
reorganization will be soon in order. 



PARTIES AND PARTY SPIRIT 223 

Next to organization for achievement in politics 
comes the inducement of voice or pen. In modern 
times the press has become a mighty engine, and we 
see its assistance invoked abroad as well as at home 
— and wherever, in fact, freedom of the individual 
struggles against the bonds of privilege. Yet po- 
litical parties contended fiercely, here and in the 
fatherland, before the newspaper was known at all ; 
and throughout our colonial and Revolutionary age 
the tract or pamphlet influenced opinion more 
strongly than did any periodical press. But con- 
ditions have since changed vastly. Newspapers 
are now industrial concerns with the rest, em- 
ploying often huge capital, profitable if well con- 
ducted, and seeking profit with popularity among 
a wide clientage of readers. Their circulation in 
this country is nearly universal and the influence 
of each is commensurate with its character. We 
all read regularly our newspaper or our magazine, 
or both. And whether as a guide of public opinion 
or its cunning interpreter ; whether to set the fashion 
or to copy and describe it; whether to instruct, 
elevate and chronicle faithfully, or to amuse, spread 
tattle, and gossip and to debase by dispensing 
rumors, scandals and sensation together, the press 
is always accosting us and it has grown immensely 
powerful in the community for good or evil. All 
must admit that when a certain mood towards men 
or measures is reflected day after day in any publi- 
cation, its circle of readers becomes greatly pre- 
possessed in political thought, and often insensibly 
so. 

The other great means for bringing men into 
political concert is oral exhortation. Speech irri- 



224 IDEALS OF THE REPUBLIC 

tates to action; it flames and fuses the wills of a 
multitude stirred up by eloquent appeal. And 
thus has it been from time immemorial. But the 
orator's art is less potent in our own day than 
formerly; and to many it must seem as if the 
golden age of American oratory had passed away. 
No Webster, Clay or Calhoun holds longer a throng 
entranced and spell-bound in the senate chamber; 
no Pinkney, Wirt or Choate sways court or jury; 
no Lincoln and Douglas contend together upon the 
stump; no classic Everett or Winthrop graces 
the academic occasion. Never was more space 
given for address or speech than upon the constant 
occasions of our present day; never had we so 
many speakers on one subject or another. Yet the 
hearers are under a stronger self-control; we enjoy, 
we gratify our curiosity, we discuss coolly and 
critically the entertainment offered us. That form 
of oratory now so much in vogue, the after-dinner 
speech, comes as the supplement of a banquet 
which we order or pay for ; and with repleted stom- 
achs we lean back in our chairs to be amused or 
pleasantly instructed over our cigars, to hear some 
utterances not likely to offend our tastes or pre- 
occupation and certainly not meant to disturb 
our digestion. The speaker himself adopts the 
tone expected of him; he may be serious, but he 
begins by being jocular. And thus do we enjoy 
much able disquisition, much elucidation ; and what 
we are most intent upon is pleasantly and dispas- 
sionately conveyed. Art, then, becomes of less 
consequence than formerly, where oratory is con- 
cerned; nor does burning conviction, if indeed the 
orator has it, kindle readily the ardor of others. 



PARTIES AND PARTY SPIRIT 225 

We, who listen, feel ourselves too nearly the peers 
of him who speaks ; and speakers among themselves 
stand too nearly on a common level. In fine, we 
of this age are apt to be cynical in politics, ac- 
commodating; and an expressive verb " to enthuse " 
suggests the sly process which we suspect any one 
of applying with premeditation who seeks to arouse 
his hearers to zealous action. All this may be 
partly owing to the optimism of the age in which 
we live and to our unexampled prosperity. After 
all, it requires some threatening calamity, some 
sense of instant danger, for eloquence to most 
deeply move — Philip at the gates of Macedon, the 
menaced safety of a Union, the impending ruin of 
all our fortunes. When men gather close together 
in their common peril, with clenched teeth and 
faces pale, and some impassioned speaker among 
them, who feels deeply with the rest — a Patrick 
Henry or a John Adams — bids them stand firmly 
in the path of duty and sacrifice which he and they 
must tread together, then do speech and inspira- 
tion truly combine to induce to noble deeds. 

Numerous accessories have lent historic effect, 
from time to time, in the political pageants of a 
republic. The cannon thunder, the brass bands, 
the shouters, the campaign songsters, the assembling 
crowds at some chosen rendezvous, the banners 
and mottoes, the torch-light processions, the illumi- 
nations and bonfires, the marching and counter- 
marching of well-drilled clubs — all these have 
helped on the enthusiasm of memorable campaigns. 
To-day we have more scientific appliances than 
ever before, to arouse or excite a populace; and 
with electric lights, racing automobiles and balloons 



226 IDEALS OF THE REPUBLIC 

sent skyward, party names and candidates are 
emblazoned. All this, however, smacks too greatly 
of business advertising methods, such as exalt to 
fame a favorite soap or a new breakfast cereal. 
No true aspirant to public honors will care to make 
vulgar notoriety from being talked about. 



Something remains to be said of recent improve- 
ments in electoral methods, such as check the 
wasteful energy of parties in political rivalry, 
through combined resources of the whole people. 
The best theatre for such experiments has been 
found in the several States. For in the lesser spheres 
of State activity, public opinion formulates better 
than in Congress and brings good wishes to fruition ; 
and change, too, may be easier applied where 
amendment or repeal seems needful. 

Here, first of all, the public or " Australian " 
ballot has won wide approval. One simple ticket, 
officially prepared and printed at the public cost, 
contains the names of all candidates to be voted 
upon, leaving the voter to mark thereon by himself 
under special safeguard the men of his choice and 
then, folding it over, to deposit it without disclosure. 
By this means, not only are party managers saved the 
cost and trouble of separate printing anti distribution, 
but bribery or intimidation of the voter is mostly 
prevented. So, too, may independent candidates 
with a stated numerical initiative take their reason- 
able chance on the official list. Party distributors 
and spotters hovered constantly about our polling 
booths in former days. When tickets were written 
or printed under party auspices, it was seldom 



PARTIES AND PARTY SPIRIT 227 

hard to discover whether or not a ballot put into 
the box was the regular one. Voters might have 
been bribed or coerced, under such conditions, and 
bargains verified. But now each voter is put to his 
conscience whether pledged or unpledged; nor 
should it be thought a disadvantage that intelligence 
enough to mark names by selection becomes thus 
needful. However details may differ in different 
jurisdictions, experience will harmonize them upon 
comparison as time goes on; and there is not a 
State, I believe, where the official ballot has once 
been introduced, whose people would willingly 
return to former methods. The opinion gains every- 
where that expression at the polls should be free, 
honest and confidential; that if good government 
needs good men to administer, it needs not less 
that the selection of those men shall depend upon 
the hearty preference of freemen, rich or poor, who 
vote by their conviction. 



Another new reform in the States tends to sup- 
plant nominating conventions of the different 
parties and diminish machine dictation by what 
are known as " direct primaries "; the fundamental 
idea being for voters themselves to assemble freely 
at the polls to determine (each under his own party 
style) who shall be candidates for the regular 
election. Instead, therefore, of the local caucus 
or convention of delegates which gets so readily 
into the stress of dickering dictation, we have the 
direct and wholesale nomination of opposing can- 
didates by secret ballot at the polls at the public 
cost and without representatives or delegate ma- 



228 IDEALS OF THE REPUBLIC 

chinery at all. This change of methods is still in 
its early stage and its favorite application is to 
municipal politics; perfection of the reform is 
yet to be attained. At all direct primaries the 
status ought to be recognized of independent voters 
who train under no party banner but mean to vote, 
at any and all times, as patriotism and a sense of 
fitness may impel them. Independent combinations 
should be unobstructed. Primaries afford the 
people's own choice among the respective party 
candidates; they remit the party machine to its 
proper subordinate place, and hence the machine 
politician is against them. Wherever the plan 
works, men and principles more than party prefer- 
ences gain ascendancy. 

In some States present legislation on this subject 
indulges too greatly the idea that existing parties 
must needs be permanent, and that each citizen 
should vote regularly with one or another of the 
two great organizations in order to maintain his 
standing. But this would be to limit free suffrage 
expression and give to party what is meant for 
mankind. A voter's consistency is best maintained 
in direct primaries, it seems to me, where he is not 
compelled to announce himself as belonging to this 
party or that, in order to cast a ballot, but as simply 
intending to vote this time under a certain party 
designation; his nominating ballot counting, at all 
events, for one candidate only among party rivals, 
and hence deserving acceptance. Sometimes, but 
perhaps not often, we find the statute liberal to such 
an extent. Again, it is asked what should be done in 
case the primary ballot gives no one among rivals a 
numerical majority of the votes for party candidate. 



PARTIES AND PARTY SPIRIT 229 

In such a case, I think, a plurality of votes should 
determine; and most of the State enactments thus 
far adopt that convenient rule, deferring all further 
controversy to the regular election. 

To extend the rule of direct primaries beyond 
State limits, so as to apply such methods to nomi- 
nating nationally a President and Vice-President of 
the United States, would seem difficult, if not im- 
practicable, with the immense area and population of 
our Union at the present time. Nor would such a 
plan harmonize with the constitutional principle by 
which our national elections are determined — 
election by State electoral consequence, instead of 
by aggregate population. Yet we have changed in 
national modes of nomination and are likely to 
change again. Nominations by a Congressional 
caucus, the earliest settled practice, passed into 
disrepute and disuse, some eighty years ago, nor did 
the plan of State nomination by State legislatures 
long satisfy as a substitute. National party nomina- 
tion in convention, by delegates from all the States, 
our present mode, is already an expensive contri- 
vance — not to add, loosely representative in charac- 
ter — and each new experience increases its cum- 
brous inconvenience. Such vast and turbulent 
bodies may delight theatrically; but impulse and 
accident, or else close manipulation, may dominate 
its results. The task of American citizenship in the 
arrangement of rival nominees is becoming too 
serious to be trusted much longer to a delegate dis- 
cretion so capricious and uncertain, so unrepresenta- 
tive, so liable to wire-pulling by those in official 
power, and, withal, so costly and burdensome to 
each opposing party. Some other method must 



230 IDEALS OF THE REPUBLIC 

presently be contrived; and perhaps we shall best 
find it in inducing States to hold to their rights and 
substitute separate State primaries under some 
cooperative plan. Even now, and without Con- 
gressional permission at all, the electoral college of 
any State may vote for President and Vice-President 
under a rule of direct primaries pre-established by 
local legislation; and any State legislature may 
pledge its electors of rival parties to the dictation of 
a State primary as among such candidates. In a 
word, each State has power to determine constitu- 
tionally how its Presidential preference shall be ex- 
pressed through its own electoral college. 



Another reform is sometimes attempted for 
securing what we term minority or proportional 
representation in a commonwealth. Cumulative 
voting, with such an end in view, has here and there 
been favored ; but such experiments have hardly yet 
reached a well-recognized practice. The rule holds 
good in a republic that government should be carried 
on for the welfare and happiness of all, and not of an 
existing majority or plurality alone. Yet, on the 
other hand, the ruling set favored and chosen to 
authority should have power to direct affairs, and 
leaders once selected by the people should be allowed 
and even forced to take responsibility. 

Other minor reforms for eliciting a full and free 
vote at the public cost are maturing in the States: 
such as a careful registration of the voters ; numerous 
polling booths and precincts, wherever a voting 
population is dense; the requirement of publicity 
in election expenditures; and, to give the official 



PARTIES AND PARTY SPIRIT 231 

ballot a freer range among candidates, special per- 
missive nominations for its list by a stated percentage 
of the voters. All such methods make for honest 
politics and for the rule of public opinion as against 
party domineering. So, too, does the prudent use 
of voting machines, or patent ballot-boxes which 
register a count mechanically; though here the 
question is raised whether the language of a State 
constitution does not intend that ballots shall be 
humanly handled and counted. It is an ingenious 
age of ours, but surely a distrustful one, that sets 
automatic contrivance against the frailty of mortal 
man. Yet for public or private count and verifica- 
tion, the self -registering adder has come to stay. 



No task for a commonwealth can be more useful, 
more uplifting, than to train intelligent citizens to 
exercise fearlessly and effectively the birthright of 
self-rule. Nor should any public expenditure be 
borne more cheerfully than that which eliminates or 
reduces such mechanisms as bossism sets up to ob- 
struct a free expression of the popular will. In the 
reserved force of public opinion lies liberty's last 
refuge. Undemonstrative, indifferent, perhaps, in 
ordinary times, our people are yet observant of the 
drift of affairs, and on critical occasion their ballots 
give to good government the preponderance. And 
thus must it ever be while liberty endures. 



CHAPTER XI 

SERVANTS OF THE PUBLIC 

THOSE familiar with our jurisprudence un- 
derstand that the doctrines of master and 
servant and of principal and agent have the 
same general root in law; that the one relation 
originates in simple and primitive society, where 
the few who are highly favored have many dependents 
to minister constantly to their wants and wait upon 
them; while the other and broader relation belongs 
to the more advanced development of civilized 
intercourse, and suits especially those concerns of 
business which are founded upon intelligent mutual 
consent and a limited and distinctive scope of 
employment. Yet, whether nominally as agent or as 
servant, whether as one of the family or as one living 
in his own home, he whose employment comes under 
any contract of hire in these days is subjected to one 
and the same fundamental law, as to rights, remedies 
and responsibilities; and every one employed in a 
private corporation, from president down to janitor, 
is in a certain sense a servant to that impersonal 
master, as he is likewise an agent. 

The word " servant " or " master " suits better 
an aristocratic state of society than a democratic one; 
and hence a milder synonym is coined for American 
households, to reconcile those once brought under 
the influence of our free institutions with those 



SERVANTS OF THE PUBLIC 233 

unequal conditions which the relation itself seems to 
imply. We employ "help," "domestics," "house- 
work girls " in our homes. But, put the symbols as 
we may, we shall not escape in its wider scope that 
subordinate service in life to which most of us must 
conform in order to make a living. And merely as a 
domestic institution associated with husband, wife 
and children, I thoroughly believe in the good old- 
fashioned relation of " master and servant," as mutu- 
ally helpful and beneficial in any household when 
conscientiously and considerately pursued. Neither 
home life nor business life can flourish without that 
wise inter-dependence which comes of such individual 
conditions, be our boast of equality what it may; 
and the true reconciling bond of all close relations of 
service is sympathy. 

Hence comes it that we have, in our popular con- 
ception of employment under government, the idea 
of a service rendered to the public as to a master. 
We have no slaves here but we have servants. 
Magistracy, in the American sense, is never exercised 
as a despotism over the common mass, but rather 
is it an authority whose derivation is from the public 
itself, from the people. To quote Virginia's bill of 
rights of 1776: "All power is vested in and con- 
sequently derived from the people; magistrates are 
their trustees and servants and at all times amenable 
to them." And to the same intent, though in 
language somewhat amplified, is the Massachusetts 
declaration of 1780: " All power residing originally 
in the people, and being derived from them, the 
several magistrates and officers of government, 
vested with authority, whether legislative, execu- 
tive or judicial, are their substitutes and agents, and 



234 IDEALS OF THE REPUBLIC 

are at all times accountable to them." The vigorous 
expression of Virginia's instrument shows the first 
glow of experiment in republican self-government; 
while that of Massachusetts came at a calmer and 
less impulsive stage of revolution, when leaders 
meant to make authority emphatic. Not " citizen " 
but " subject " was the word used in this latter in- 
strument to denote those over whom popular gov- 
ernment was to be exercised. But the essential idea 
of both Virginia and Massachusetts maxims was here 
the same: the people themselves w T ere the true 
source of authority; and to the people were all 
officers of the commonwealth to be held at all times 
accountable. Public officers were thus, under 
Virginia's definition, " trustees and servants"; by 
that of Massachusetts they were " substitutes and 
agents " ; but whether called servants or agents, the 
meaning was identical. And so does the idea hold 
to the present day, as defined in all our later State 
instruments and as implied, at least, in our national 
one. 



What we are, first of all, to observe of public 
servants or agents, as America views them, is that, 
though rulers in authority, their authority is derived 
fundamentally from the people, and that to the 
people, directly or indirectly, they are each and all 
ultimately accountable for their official acts. Sub- 
ordinates, indeed, may be answerable to an immedi- 
ate superior; but no one in authority, not even the 
supreme executive, may set himself above the mass 
of citizens as a whole, for their will in State or nation 
is and should be paramount and comprehensive. 



SERVANTS OF THE PUBLIC 235 

Far different is such a theory from that upon which 
absolutism always rested in the old world. Yet let 
us bear in mind, the sway we recognize in a republic 
or democracy is that of the whole people collectively 
and not of individuals among them. In the ante- 
room of an executive building, during troublous 
times which I recall, men had gathered apart to 
obtain an audience of the chief magistrate, each 
eager upon his own affair. "What!" exclaimed 
one of them, impatient over his delay, " are they 
not our servants? " " Servants of all," was the 
response of the secretary, " but not of you or others 
here alone. You must wait for your turn." 

Nor is public authority to be more lightly esteemed 
because it originates in popular sanction. Under 
any conditions magistracy can compel the sub- 
mission of each and all inhabitants to its legitimate 
discretion. And in times of public peril and distress, 
the executive who guides and conserves, in the name 
and by authority of the people who have chosen 
him to supreme station, is mightiest of the mighty. 
Armies spring up, volunteers hasten to the front, 
fleets are organized and equipped, official energy for 
the public safety is not confined to the police alone. 
The laws themselves yield to necessity and suffer 
strain when arms resound. 



The fathers of our political system insisted 
strongly that public service here should be freely 
open to all citizens alike, without distinction, and 
not confined to privileged classes or families. Says 
the Massachusetts instrument: " All qualified have 
an equal right to elect officers and to be elected for 



236 IDEALS OF THE REPUBLIC 

public employments." And Virginia had already- 
declared that offices should not be hereditary and 
that no man was entitled to exclusive emoluments 
or privileges. The two great banes of public office 
had been, under colonial experience, sinecures and 
that favored bestowal by relationship which we 
term nepotism; and against both of those evils all 
government has to contend. 

Aside from pensions, civil or military, whose 
extent of allowance must be influenced by considera- 
tions of public advantage, the sinecure post which 
affords income to privileged incumbents without 
corresponding work must always be regarded with 
disfavor. No one should eat the bread of idleness 
at the involuntary cost of the public. Nepotism, 
too, is discouraged in this country. If, at the present 
day, our officials show personal favoritism in award- 
ing the public patronage, they usually avoid the 
imputation of feathering nests for their own families ; 
the near relation, if recognized at all, is shaded in 
some irresponsible post ; and it is the needy follower, 
rather, the political friend and henchman, the party 
worker and the worker's own dependents, for whom 
places are found at the public crib, to the scandal 
and detriment of the service. 

As against hereditary claim to office, American 
sentiment barred firmly the door at the outset and 
that bolt has never been withdrawn. Yet for an- 
cestral service in some particular line of official duty 
our people are still susceptible of gratitude. Upon 
the bench, in the lesser civil offices, in the army or 
navy, American families have well sustained their 
name and fame, in many instances, through suc- 
cessive generations. And surely, under any stable 



SERVANTS OF THE PUBLIC 237 

form of government, the illustrious career of a pro- 
genitor may strongly stimulate the scion of a later 
date to corresponding usefulness, though he, too, 
stands upon his own merits. Mayors of cities, 
governors of States, conquerors by sea or on the 
battlefield, have shown repeatedly to our democracy 
that ancestors will tell; and two native families 
have each furnished, at convenient intervals, two 
Presidents of the United States bearing the same 
surname. 



Rotation was much insisted upon as an incident 
of official tenure, while our experiment of free gov- 
ernment was new. " In order to prevent those who 
are vested with authority from becoming oppressors," 
is the strong language of the Massachusetts constitu- 
tion, " the people have a right, at such periods and 
in such manner as they shall establish by their frame 
of government, to cause their public officers to return 
to private life and to fill up vacant places by certain 
and regular elections and appointments." But 
here the highest posts were more strictly regarded, 
such as now-a-days all good citizens may compete 
for but only those honored at the ballot-box can 
obtain. To lay down such authority after exerting 
it well for a limited period is to win the crown of a 
people's applause and gratitude. To adjust, how- 
ever, the proper terms and limitations of public office 
is a practical problem, and admits of variation. 
When the common concerns have grown to be vast 
and intricate, experience or expertness is a valuable 
accession to capacity in any official, and the servant 
of the people who has proved himself faithful and 



238 IDEALS OF THE REPUBLIC 

honest in his place may well expect a fair continu- 
ousness of employment, sufficient to justify self- 
devotion to his task, with, perhaps, in addition, 
the chance of promotion. And this holds particu- 
larly true of subordinates engaged in routine work. 
Fellow-citizens in the mass, under the strenuous 
conditions of our present age of living, give less heed 
than formerly, less scrutiny, to detailed operations 
of the government; they become absorbed in their 
private concerns, in the closer struggle to gain 
personal wealth, competence or a livelihood; and it 
is only the higher candidates and the more momen- 
tous issues of politics, that stimulate ambition or 
draw their concentred gaze. To rotate for the mere 
sake of rotation, under such circumstances — to make 
frequent vacancies in the lesser offices only that 
other aspirants may take their turn — is to debauch 
and debase the practical conduct of affairs. 

We see enough and more than enough of that 
ruthless sweep of the offices whenever a new party 
administration comes into power after some exciting 
canvass. If high executive incumbents must change 
frequently who are held directly answerable to the 
people — not to add that frequent change of repre- 
sentatives to which all legislative assemblies are 
liable — there should be something of a permanency 
in those lesser posts, at least, where the manifold 
details of public business are transacted and fa- 
miliarity is almost indispensable. If you have a faith- 
ful and competent subordinate in your household or 
private business, you do not shuffle him off to give 
some new and untried applicant a chance; but 
rather you keep and, if you can, you promote him. 
Rotation, then, even in its most alluring sense of 



SERVANTS OF THE PUBLIC 239 

giving the rewards of public station fairly and freely 
to all capable of filling such posts usefully, and not 
merely to pay off political debts, applies fairly enough 
with restrictions; and political elections, so costly 
and distracting as we find them to-day, ought not to 
come so frequently as to debar even the highest once 
placed in authority from fairly fulfilling the task 
which he has been chosen to accomplish. Free gov- 
ernment, rightly comprehended and applied, is a 
blessing; but a rotation which keeps affairs in con- 
stant turmoil affords no government at all ; it makes 
of public service a huge fountain trough at which 
each citizen may drink when his turn comes, and 
then go thirsty for the rest of his life. 

The public servants who should essentially re- 
spond to the people and be held to actual account for 
their stewardship after a brief and stated term are 
those, then, of exalted public position, and notably 
those whose tenure is by election. They of sub- 
ordinate station, on the other hand, respond rather to 
their own superiors, in accordance with custom in 
the private concerns of life. Tenure by faithfulness 
and efficiency might fairly be the rule for such sub- 
ordinates under normal conditions ; for both in the 
nation and our largest States the band of lesser 
employees has steadily increased until, in these 
days, swelled by local demand in the great centres 
of municipal life, the aggregate number of public 
servants throughout the Union has become enor- 
mous. 

All submerged patronage of the lesser offices tends 
to wholesale abuse of party victories at the polls, 
and the pressure for spoils under a conquering chief's 
distribution becomes tremendous. Whether re- 



240 IDEALS OF THE REPUBLIC 

garded in its effect upon the subordinate himself, 
whose appointment through influential pulls procures 
a position precarious and uncertain, at the cost of 
his own self-respect and personal independence; or 
upon the appointing head, who is beset with hungry 
applicants and solicitation, when he should be 
studying rather his graver tasks ; or upon the legis- 
lature, whose members are taught to meddle and 
dictate in such matters; or upon citizens at large, 
whose prime interest, under any administration, is 
that of having a government of the people and for 
the people well carried on by its deputed agents — 
any such system of favoritism in awarding the lesser 
offices is vicious and corrupting. Government thus 
becomes the stronghold of usurping and plundering 
partisans. Jobber}' flourishes and the dickering of 
patronage; public servants in high authority grow 
into public masters; and political parties come to 
cohere less because of useful measures they advo- 
cate than through the coalition of selfish and sinister 
interests at the cost of the tax-payers. 



On the one hand, within the last forty years, the 
array of national. State and civic offices has vastly 
increased, but happily on the other, the cause of 
civil sen-ice reform has made such genuine progress 
as now to cover in a large and increasing proportion 
of the lesser salaried positions, under regulations 
which check or forbid their capricious distribution 
and ensure something of stability to such as prove 
themselves honest, capable and industrious at their 
posts. Patronage by favor must and will exist to 
some extent under any form of government; and 



SERVANTS OF THE PUBLIC 241 

under our own the national appointing head cannot 
be constitutionally coerced beyond a certain point; 
but the evils of such patronage have been greatly re- 
duced under a standing system of executive rules, 
cheerfully promulgated, which public opinion has 
come to sustain. In Great Britain, a reform of this 
kind prevailed and spread, beginning with the post- 
office, although at first encountering the most violent 
prejudice; and similar experiments succeeded in 
France and Germany. In America, somewhat later, 
the cause made its first real advance under an Act of 
Congress passed in 1871. Civil service rules and 
civil service boards for framing and applying those 
rules are at this day a notable feature of State and 
municipal as well as of Federal administration, and 
the result has been to make the public service more 
attractive and more freely open to the young and 
efficient of our people at large than ever before. To 
a Democratic President and the only one of that 
party faith who has ruled since 1861, we owe the 
most liberal extension of rules in that respect that 
the nation has yet known ; a change certainly, since 
Whigs and Democrats fought half a century earlier. 
Yet only a trained public opinion, honest and in- 
telligent of purpose, can permanently keep down 
party passion in such respect or check the selfish 
perversity of human nature. 

Probation is a desirable element in all just schemes 
of appointment to the lesser places. Once fully 
installed, the civil service employee needs for his 
best effort the stimulus of an assurance that the 
reward of promotion, or at least of reasonable con- 
tinuance, is within reach; and to any aspirant in 
life who has once gained a vocation, permanence 



<2A2 IDEALS OF THE REPUBLIC 

therein and the dignity of the employment furnish 
a fair offset to modest compensation. We lose many 
valuable young men who enter the public service 
for immediate need, because such permanent at- 
tractions are wanting. But a clerical appointment 
may well at the outset be probationary for six months 
or a year ; at the end of which time a reappointment 
should make the selection full and final. Apart 
from all civil service rules, some high officials at 
Washington in the past have pursued such a practice 
with profit to themselves and the public. The State 
department has always maintained an esprit de 
corps, its successive Secretaries showing much con- 
servatism in making changes. During our Civil 
War, when its routine force had to be largely in- 
creased, the new clerks appointed were placed at 
first upon a distinctly temporary footing, and only 
transferred to the permanent roll as vacancies oc- 
curred after each had proved his fitness for advance- 
ment. 



The late Sir Arthur Helps, in his writings on 
British political science, expressed much favor 
towards subordinate boards or commissions for 
transacting administrative business. But any such 
estabhshment, I think, has disadvantages. Where 
judicial or legislative functions of a sort are to be 
exercised — as in deciding controversies upon close 
investigations of fact, or in promulgating rules 
deliberately framed — a board or commission may 
be of good avail; but for the prompt and efficient 
despatch of routine business, where leading principles 
are clear and facts readily ascertained, a single head 



SERVANTS OF THE PUBLIC 243 

seems far better; and to superior consistency in 
working out details is thus added a superior incentive 
to success, with a superior sense of responsibility. 
Then, too, the single-head system proves usually an 
economy, and not in salaries alone. For a commis- 
sion or directory is apt to procrastinate, to be prodigal 
in its plans, to move with unwieldiness ; and even 
boards whose members serve without pay rely much 
upon a salaried secretary who manages details for 
them. In Massachusetts, which carries perhaps the 
heaviest public debt proportionally of any State in 
the Union, boards, with rotating members whose 
terms expire at different dates, absorb the various 
functions of administration so largely — wheels pro- 
pelling wheels, — that the governor, who is chosen 
annually, exerts but little executive power beyond 
filling vacancies as they occur. Some of these boards 
are composed of citizens who serve without pay, and 
their very disinterestedness makes them all the more 
zealous that the work which engages them, — chari- 
table, educational or beautifying, — shall widen its 
costly range. It was a wise University President 
who once remarked that the function of his earnest 
and efficient professors in the faculty was to press 
for the development each of his own department as 
the essential one, while his function was to restrain 
them all. 



The ultimate criterion of successful self-rule is 
found in the local unit or monad of town or city. 
There democracy learns its primary lessons, and 
there, too, it wages its hardest fight ; and if corrup- 
tion and misrule gain there finally the upper hand, 



244 IDEALS OF THE REPUBLIC 

government by the people must perish. In our 
rural American settlements, where agriculture makes 
the basis of prosperity, and a homogeneous society, 
largely composed of intelligent farmers and free- 
holders — neighbors all and easy acquaintances, — 
vote, discuss and determine in public meeting to- 
gether, self-rule is safe enough. But with our modern 
manufactures inducing a promiscuous mill popula- 
tion, — with our gigantic commerce and immigra- 
tion from abroad, a home market and local trans- 
portation, — swarm the vast and medley crowds of 
inhabitants, native and foreign-born, rich and poor, 
taxable and non -taxable, by tens and hundreds of 
thousands, in some ill-assorted metropolis; and 
there, with luxury and poverty, crime and pauper- 
ism, brought closely together, the whole problem 
of local regulation becomes increasingly a complex 
and difficult one. Service of the people is truly in a 
hard case where office-holding, instead of bringing 
social renown and pre-eminence, is thought hardly 
respectable. 

We have erred as a people, I think, in treating the « 
government of cities and great centres of population 
too much like that of a commonwealth. Neither the 
area of territory covered, nor the theory of corpora- 
tion law, nor the character of the concerns combined 
in interest, justify here, as in a state or nation, the 
fundamental separation of governing powers or 
assemblies minutely representative. Such methods 
worked tolerably, to be sure, while citizens the best 
and fittest served willingly and were invited to 
serve ; but no longer. The two-chambered assembly 
of aldermen and common council is no fit substitute 
for a town meeting ; and I know of one New England 



SERVANTS OF THE PUBLIC 245 

town, far more populous than many a city, which 
has steadily refused municipal merger or a municipal 
charter, because still persuaded that the town 
system simplifies the machinery of its government, 
compels the open accountability of those chosen to 
administer and preserves best the spirit of democracy. 
For reward that town is a favorite domicile with 
rich men in preference to the neighboring cities; 
and its rate of taxation has been well kept down. 

Just at this time, in various States, interesting 
schemes are proposed for municipal government 
which, while eliminating the town-meeting or 
plebiscite, may yet simplify political conditions. A 
city is at law a chartered government, similar in its 
establishment to private or business corporations, 
and liable, under constituent provisions, to modify- 
ing enactments from time to time. All corporations, 
indeed, whether public or private, are but the 
creatures of legislation in their origin. Washington 
city, or rather the District of Columbia, maintains 
an exceptional existence ; it is the sole metropolis of 
the Union, the only central abode of the nation; 
and Congress, under our Federal constitution, con- 
trols there exclusively. Washington was long 
governed by its own inhabitants under a city charter ; 
but a full territorial status was given to the district 
during the presidency of General Grant, — with 
governor, secretary and a legislature, and with a 
delegate, besides, to sit in the popular branch of 
Congress. A few years' trial however brought that 
municipal monstrosity to the verge of utter bank- 
ruptcy; whereupon Congress, sweeping away the 
territorial establishment, and assuming the aggregate 
debt with a definite adjustment of taxation for the 



246 IDEALS OF THE REPUBLIC 

future, placed the whole jurisdiction in charge of 
commissioners to be appointed by the President. 
Since then, favored by many circumstances, Wash- 
ington has blossomed and bloomed, without local 
suffrage or self-rule at all ; yet its conditions are too 
peculiar to serve for example elsewhere. We learn 
thus, however, that a large city may be administered 
by a board of three men, well-selected; and we learn 
besides, that any American city with a full territorial 
outfit is over-weighted. Experiments more to the 
purpose in simplified city government were lately 
made with success in Galveston and Houston, 
southern cities of moderate size; while Iowa has 
since initiated in full detail a general plan, for its 
cities of 25,000 inhabitants or more to adopt at 
discretion, and with special reference to Des Moines, 
where the scheme will soon be practically tested. 
The main feature of the civic plans thus instituted 
is to vest direct municipal control in a board of 
directors. In Galveston, three persons — much like 
the familiar selectmen of New England towns — 
administer all local concerns, dividing the depart- 
ments among themselves ; while by the Des Moines 
plan a mayor and four councillors are to take similar 
charge. Responsibility is closely fixed by such a 
method, and the popular gaze centres upon a few 
fellow-citizens deputed at the polls to administer 
wholly. 1 Another plan which some propose differs a 
little from both these Texas and Iowa plans, and 
conforms more closely, I am told, to city schemes 
successfully working in Great Britain. Here a 

1 The legislature of Massachusetts (1908) has just applied to Chelsea, 
in that State, an experimental scheme of government by commission, 
under the inducement of a disastrous fire compelling the re-building of 
the city. 



SERVANTS OF THE PUBLIC 247 

municipal council, say of fifteen members, all chosen 
by the people for three years, with one-third rotating 
each year, conducts all civic operations as a body of 
convenient size ; the mayor or chief executive being 
chosen from their number like the president of a 
business corporation. Since commissioners, by each 
and all of these plans, are chosen at large by the 
voters, local self-rule as a principle suffers no viola- 
tion. 1 

In schemes of municipal government, such as 
these, the main direction of civic affairs blends 
executive and legislative functions ; and, aside from 
dispensing justice in courts civil and criminal, city 
government is administered by a convenient sized 
board of directors, as in corporations generally. But 
among charters which respect more our older tra- 
ditions, that lately framed for Baltimore, which has 
been a few years in operation, receives much praise. 
Among its noteworthy features are: civic elections 
from among civic leaders of the whole people, re- 
gardless of subdivision by ward lines; a concentra- 
tion of power in the mayor, such as to promote good 
rule and a personal sense of accountability to the 
voters; the requirement of professional skill in all 
professional offices; a positive pre-arrangement for 
public recompense in every grant of public franchises ; 
and a clear separation of the functions of estimate or 
appropriation from that of expenditure. So inherent 
and so vital to the public interest must be all power 
of granting and defining the amounts to be publicly 
expended, that many reformers still insist upon some 
sort of municipal assembly or council for that 

1 The new Chelsea government modifies this principle somewhat, to 
meet an emergency. 



248 IDEALS OF THE REPUBLIC 

purpose, as the only legitimate creators of debt for a 
large city. But, however it may be, where town 
meetings of all the voters give competent authority, 
or, by way of substitute, in a city, the referendum 
and initiative prevail on the general behalf, I believe 
that purely representative assemblies for a city should 
be discouraged, and that State legislatures, rather, 
and State constitutions should impose judicious 
limits upon local borrowing or appropriation. For 
with civic populations as we find them distributed, 
the average representation by ward or precinct must 
largely consist of untrustworthy men, interested in 
petty jobs and in deals for power and patronage. 
Few comparatively of such persons have a tax- 
paying interest in appropriations or debt. They 
largely represent in ordinary times the vicious aims 
of metropolitan life rather than its virtuous. Elevate 
the character of that representation, if you may, on 
emergency, and even then such an assembly proves 
inefficient and obstructive; and the more so when 
it consists of two branches. A small board of 
president and directors administer skillfully a great 
railway or industrial enterprise with enormous 
money dealings; and why not here a mayor and a 
few capable aldermen ? 

It is true that the spirit of reform in all free govern- 
ment should be aroused among the people them- 
selves; that unless the electors are virtuous and 
intelligent and bent upon getting good rule, the city 
will not have it ; that it is not enough to set a new 
establishment upon its feet, but each step in the 
new progression must be watched and guided. Yet 
the scheme itself of any reforming experiment is of 
the utmost consequence towards ensuring success, 



SERVANTS OF THE PUBLIC 249 

and the simpler and more sensible the plan the easier 
will be found its operation. Where arbitrary dis- 
trict lines are fairly obliterated, and the voter has 
only to exalt a few fellow-citizens of the whole civic 
jurisdiction to conspicuous authority, he is more 
likely to vote zealously, discreetly and regularly, 
than where he must choose among many obscure 
nominees for powers subdivided. The greater, too, 
the chance of honorable distinction, the better are 
the candidates available. 

It may, perhaps, be claimed that where the prizes 
of municipal authority are few and involve an indi- 
vidual power and patronage vast and discretionary, 
unscrupulous bosses will contrive a machine all the 
more cunningly to capture them. But to this we 
reply that grafters cannot be easily combined for a 
formidable machine where local cohesion is dis- 
couraged. Government is a practical affair under 
all circumstances; and a plan might be radically 
changed to suit one city which should stand unaltered 
or only slightly modified for another. If under the 
most favoring general conditions the honest and 
intelligent of a community cannot or will not break 
down and keep down corrupt combination against 
the general interests, that community is unfit for 
self-rule and must bear the ill consequences. 



There is one more problem in connection with 
public service which I wish to touch upon : and that 
is, how far ought a government like ours to reach out 
and take concerns into its own management which 
have been carried on hitherto by private capital 
and enterprise. The American idea of sovereignty 



250 IDEALS OF THE REPUBLIC 

has been hitherto a simple one: to afford to every 
one the freest possible opportunity to make a living, 
by protecting and upholding all individual rights; 
but not so as to absorb business and hire employment 
in the name of the people, nor for undertaking in- 
dustries whose range extends much beyond the 
legitimate needs of administration. Towns, cities 
or counties open and maintain highways, supply 
institutions penal and philanthropic, provide schools, 
keep up a police, control sanitary conditions. States 
direct, on a larger scale, with the same general object 
viewed in a broader range, and heedful of the 
whole commonwealth. The United States, under 
a constitution of its own, has a national jurisdic- 
tion, under delegated powers specifically expressed: 
it deals with governments abroad, regulates foreign 
and interstate commerce, insures domestic tran- 
quillity and harmonizes the operations of the States 
themselves. Each of the three species of authority 
thus co-ordinated has its proper bounds. 

On the theory of public need or advantage in 
addition to private convenience, or as concerns the 
profit to accrue from its private customers, there is 
more reason why a town or city should own its 
water supply than its gas or electric lighting; and 
more reason why it should own its lighting system 
than the carriage of passengers by horse, steam or 
electric power, even though its highways be thus 
used. It is a serious undertaking for any town or 
city to carry on a business with its own separate 
inhabitants, and to do so profitably in a money 
sense may prove extremely difficult. What private 
capital, with its ambition to earn a profit, may suc- 
cessfully conduct by its freer methods, the public, 



SERVANTS OF THE PUBLIC 251 

managing through public agents alone, will often 
find costly and burdensome, instead of profitable. 

Among such utilities of local concern, a water 
supply is by far the most suitable for a town or city 
to undertake. It is the nearest allied to our recog- 
nized public functions ; it is the most universally in 
demand among inhabitants ; it is the easiest managed 
and the easiest comprehended of all such enter- 
prises; its proper conduct promotes the public 
health and cleanliness and assures protection against 
disastrous fires. But with lighting as a public un- 
dertaking the case is not so strong ; for here gas and 
electricity are rivals at this day for the general 
patronage, while many people dispense with them 
both, using oil or candles; large and costly plants 
well equipped are needful and expert study must 
keep constantly on the stretch — with electricity 
in particular — to make new inventions available, 
new improvements, new economies. All that gov- 
ernment needs here for itself is to light its streets 
and its public buildings. 

As for that other and vaster problem which 
attracts so much attention at this day — the car- 
riage of passengers as a public pursuit — the business 
itself is so wholly remote from the essential operations 
of local rule as never to have gained a lodgment in 
the public mind until, in quite recent years, street 
railways came into vogue and the laying of tracks in 
the public highways compelled a grant of privileges. 
It is vain to suppose that, while our petty politics 
lands lazy, shiftless and ignorant men in the lesser 
jobs of municipal control — to say nothing of vicious 
self-seekers — that a competent force of trained 
employees, zealous and worthy of promotion, can be 



252 IDEALS OF THE REPUBLIC 

well kept in regular service for operations so difficult, 
so foreign to civic government and so expensive. 
Nor is it in human nature to expect that subordinates 
can be so well disciplined and kept up to the standard 
in operations whose interest is diffused through the 
community, as in those of private concern, where 
one's own funds are invested for industrial loss or 
gain. Then, as to customers, the average citizen is 
moved by the wish of being carried for a cent or two 
less in his fares, no matter by what general sacrifice 
that result is brought about, and the responsible 
public servant who seeks popularity will dismiss 
economies to favor him. But with private owners 
the whole scope of the business is considered that 
the enterprise may succeed pecuniarily, and any 
stockholder knows that his potential dividend is 
subject to fixed charges which must be met before a 
net profit can accrue. Wherever individual risks 
must be taken the balance-sheet will be scrutinized 
and remedies applied intelligently; but in business 
borne by the whole people one is rarely intent upon 
more than what he himself has to pay in taxes. For 
our great majority, like customers in a department 
store, seek the lowest price as patrons for what they 
want and care not for a seller's sacrifice. 

Another obstacle to the local conduct of such 
undertakings is the constant widening of their scope 
beyond the needs or appropriate control of a single 
community. With better gains and savings, where 
the business is broadly conducted, we now find gas 
and electric plants united under a single manage- 
ment so as to serve several towns and cities; while 
even for a water supply municipalities must fre- 
quently combine. Both gas and electricity, too, are 



SERVANTS OF THE PUBLIC 253 

sought for other purposes than mere lighting — as for 
heating or motive power. Street railway systems 
come to stretch farther and farther beyond the town 
or city in which their traction originated, until 
rivalling in fact those older transportation lines by 
steam which formerly absorbed the traffic in freight 
and passengers between points distant. All this 
opens up complexities too great for solution by a 
single local government, and legislation by the State 
must be invoked to reconcile and control. 



In its most portentous aspect this whole problem 
of public management or monopolization is becoming 
vastly more than a municipal or even a state con- 
cern; and in railway transportation, at least, its 
range extends to inter-state control, and is growing 
to be a great national issue. If it be argued that the 
interests of our whole people would be better served 
and promoted by having any or all of the vast and 
growing transportation systems of this Union placed 
in the centralized grasp of Congress and the authori- 
ties at Washington, let us ask for a moment how has 
it been with the one great carrier establishment 
already in the national keeping — that of the post 
office. Here is a transportation of the simplest kind, 
which comes home to every one and is easily regu- 
lated by fixed and uniform rates; a business long 
conducted by government in civilized countries and 
wisely placed in America upon a united footing, 
while yet we were crown colonies. All the practice, 
all the experience, inherited through centuries of 
dependence or independence from an unbroken line 
of public managers, beginning with the great Frank- 



254 IDEALS OF THE REPUBLIC 

lin, as a loyal subject of King George, have been ours. 
The actual appropriateness of such a public estab- 
lishment has never been seriously doubted, and our 
constitution makes the right of the general govern- 
ment to own and conduct it clear, positive and 
unqualified. As a matter of fact, however, — to be 
verified by comparative figures and the statistics of 
our private express companies engaged in a similar 
pursuit and making great profit, — it will be found, 
I think, that this government of ours does not get 
a fair equivalent for the money it annually expends. 
I will not say that our postal servants, as a whole, 
are incompetent or untrustworthy, for the business 
itself is easy and under requirement of the merit 
system this branch of civil employment has vastly 
improved of late years; yet the time is not remote 
in the past when local postmasters were largely 
political placemen and party workers, nor has 
bureau corruption at Washington been unknown. 
For honor and enterprise at a given date much will 
depend upon the high cabinet officer who happens to 
be in charge for a brief time as administrations 
rotate; and extensions of the service, hither and 
thither, are due most of all to the push and energy 
of our private citizens, who build and equip new 
highways of commerce with their own capital and 
whose officials make mail contracts with government 
for a mutual advantage. What I wish to remark, 
however, is that under the fitful supervision of our 
overworked Congress laws get rusty, abuses creep 
stealthily into the system, and favoritism or the 
desire of popularity dictates changes at variance with 
a just, uniform or profitable management. Thus, 
the franking privilege among Congressmen has been 



SERVANTS OF THE PUBLIC 255 

at times a flagrant scandal ; this very day the mails 
are overloaded with matter transported at losing 
rates in order that the publishers of newspapers and 
periodicals, those potent moulders of voting opinion, 
may be pleased ; and latest of all, we have for rural 
and remote communities a free delivery system, 
plainly unremunerative, which legislators who wish 
local popularity seek to extend indefinitely, to the 
depletion of the treasury. In short, our postoffice 
establishment, with all its positive merits, has long 
since ceased even the effort to be self-supporting, 
and foots up annually for our Union a considerable 
deficit, instead. It seeks to become, rather than an 
aid to the revenue, a benevolence, a charity ; and like 
most charities managed by public servants at their 
discretion, its bounty is dispensed w T ith something of 
partiality — to say no more — as against the 
general interest. 

How, then, as to launching this Union upon the 
far more involved and prodigious task of owning and 
conducting the railroads — whether in connection 
with State ownership for State carriage or as the 
great centralized transporter in the land? The very 
thought is staggering, when we reckon the mileage, 
the army of employees requisite or the many billions 
of dollars to be added to our public debt. European 
governments of moderate area and dense population 
may, with each an exclusive and compact jurisdiction, 
manage railroads as public establishments; but we 
already have in the United States considerably more 
miles of railway track than all Europe comprises. 
It is even less, perhaps, the despotism sure to result 
from so powerful a lever of centralized patronage 
which should alarm us than the likelihood that so 



256 IDEALS OF THE REPUBLIC 

vast a consolidation would merge into a grand 
socialistic scheme for national bounty, leaving all 
profit-seeking behind. People would wish to travel 
free or at rates ruinous; citizens by the million 
would seek easy employ; and, worse than all this, 
individuals, corporations, towns and cities them- 
selves, would be forced to lobby at Washington in 
eager competition for special transportation favors 
that might promote a special advantage. So far 
from increasing net earnings we should sink the 
nation speedily in a bottomless pit of pecuniary 
waste and jobbery. 

Another consideration against government owner- 
ship which ought to be taken into account, is the 
legal non-accountability of government to citizens. 
Every carrier, from railroad to teamster, is bound by 
our common law to serve the public alike in his 
vocation; and, furthermore he becomes a virtual 
insurer of the goods transported against all loss or 
injury, except for a few specified calamities which he 
would be powerless to provide against. Legal redress 
for breach of such conditions is ample and our legis- 
lation enhances the remedy. Again, if a passenger 
suffers in life or limb through even the slight fault 
of a carrier or his servants, there is full recourse in 
damages. Now, if government, on the other hand, 
be the carrier in any such case, whether State or 
nation, there is no remedy by suit, save so far as a 
sovereign may consent by positive statute to be 
held liable to a subject. Hence, if government takes 
the railways into its control and ownership, there 
can be no implied redress against its favoritism or 
partiality; no fine can be imposed for rebates, no 
injunction issued; while, as for loss or injury suf- 



SERVANTS OF THE PUBLIC 257 

fered in person or property, Congress or the legisla- 
ture must deliberately choose whether to economize 
in expense by withholding indemnity or open up 
by enactment a multiplicity of vexatious suits by 
customers such as all carrier companies have found 
inseparable from the business. If a private express 
company fails even now to deliver a letter or a light 
parcel entrusted to its care, it must as a rule re- 
imburse fully the customer; but government in 
postoffice transactions long stood upon its sovereign 
immunity in such respects ; and only very lately has 
Congress allowed to registered losers in the mail 
a statute recompense to the limit of ten dollars, by 
claim made upon the Postmaster General. 



In short, regulation, and regulation alone, is the 
true recourse for government, in dealing with most 
public utilities, and especially with utilities which 
lie outside of government needs and whose conduct 
demands great skill, expertness and industry, in 
order to earn a profit. If courts lack adequate 
powers in such respect, public opinion will induce 
legislation to supply the need. It is thus, most of 
all, that private corporations engaged in any business 
essential to the whole community may be forced to 
give equal facilities to all who are prepared to pay 
fair and customary rates. As to fixing the rates 
themselves, — which certainly should not be after so 
arbitrary and meddlesome a manner as to do 
violence to private ownership or deny to invested 
capital its fair return, — I have my doubts of the 
utility of any political commission as active rate- 
makers at their discretion. They may investigate 



258 IDEALS OF THE REPUBLIC 

and make findings upon special cases, but after all, 
what may or may not be a " just and reasonable " 
rate is for courts to settle upon a controversy; nor 
ought owners to be deprived of their property rights 
to please the multitude. To " regulate " is quite 
consistent with the functions of government — to 
subject to some prescribed course of dealing — to 
adjust by salutary rule or method. This is not 
however, to actively manage in detail or to conduct 
the business ; for this belongs to responsible owners 
or, in an emergency, to officers of the court acting in 
the interest of both creditors and owners and under 
direct judicial supervision. And regulation by 
government applies most legitimately to a per- 
mitted monopoly, since free competition in a busi- 
ness is of itself a regulator. 

And thus, in the language of our Federal constitu- 
tion, has Congress express power to " regulate " 
commerce among the several States, but not to own, 
manage, or carry it on responsibly; that same word 
" regulate " applying likewise to our commerce with 
foreign nations and upon the high seas, as we have 
constantly respected the sense of such a term. This 
Union does not own the shipping; why, then, should 
it own the railways? All public regulation rightly 
regards the rights of private property. And govern- 
ment through public servants will thus, and thus only, 
fulfil its exalted mission; which is to grow and 
gather strength and give support, not fitfully nor 
with premature decay, but so as to " take root 
downward and bear fruit upward." 



CHAPTER XII 

THE STRIFE TO SURPASS 

I CHANCED to read, some months ago, in one of 
the weekly newspapers of Philadelphia, a letter 
from a colored citizen of sobriety, which pro- 
tested against the charge so often made that those of 
his race were seeking social equality with the whites. 
M It isjiot social equality," he contends, " that my 
brethren cherish, but the ambition of being superior 
to others in something — as in wealth, display, 
luxury or athletics.' ' 

That observation is a suggestive one and may set 
others among us thinking, besides those of the race 
referred to. Personal liberty, — the opportunity to 
rise in life and gain influence and standing in the 
community, — does not primarily or immediately 
set one to equalizing his condition with that of any 
other men or set of men socially superior, so much 
as it makes him intent upon getting above his 
present situation and in some way surpassing those 
who most closely surround him. He may, it is true, 
emulate exemplars, cherish ideals, hope for affiliation 
hereafter in the broader plane to which he aspires, 
but his main thought is, in one direction or another, 
to distinguish himself among his fellows. It is not 
so greatly to be equal to his superiors that he 
covets, but to be superior to his equals. Even if 
motives be so blended in one's practical conduct of 



260 IDEALS OF THE REPUBLIC 

life as hardly to operate independently, each im- 
pulse is distinguishable. 

That ambitious, self -expanding spirit which swells 
within the breast of each inhabitant whose favored 
lot is cast among free institutions like ours, aggre- 
gates individuals of character in one vast community. 
The millions and tens of millions to which our 
population foots up rapidly by count, upon succes- 
sive census rolls, are not mere totals, but many a unit 
glows with distinct and earnest life. We are not 
like sands upon the seashore, conglomerate, in- 
numerable, but rather like sparks which course to 
and fro, each endowed with the essence of vitality, 
and all immensely effective together in action, 
because effective separately. 

Something of the overpowering force which comes 
from intelligent and positive habits of expression, 
where individual minds and wills are strongly united 
in instant action, has been witnessed at various 
great crises of our national life and may be witnessed 
again at some other great crisis hereafter. And 
that same creative and co-operative energy — that 
same combination of forceful personal wills — has 
worked steadily, at every step of our advance to 
wealth and refinement, in opening up the abundant 
resources of a continent. The negro race among 
us, though lingering still of choice among the scenes 
and surroundings where a barbaric career once 
compelled, is stirred by this stimulating atmosphere 
of ours to a higher and bolder life. And while, too, 
the oppressed European exile who has sought here 
an asylum may bear on his back the heavy burden 
of ignorance and iniquity while trying to better his 
fortunes, he becomes speedily sensible of a progress 



THE STRIFE TO SURPASS 261 

in personal self-respect and freedom. What the 
elder among such undeveloped inhabitants, hardened 
in cramped modes of life under some older system, 
may fail of achieving in the individual effort to rise, 
his children, reared and trained from infancy under 
republican conditions, carry into fair accomplish- 
ment. Education, secular and religious, among the 
rising generation of our composite population — the 
training of each and all for the duties of citizenship 
and an honest and useful livelihood — upon this 
does the salvation of our institutions and society 
most of all depend from age to age. 



The desire for social equality and the desire to 
surpass — these then are the two great forces which 
impel our individual life here at the present day in 
eager progress. These forces are not easily recon- 
ciled; and yet upon their just correlation or re- 
sultant, well maintained, depends essentially the 
ultimate success and preservation of our national 
experiment. And what much enhances the diffi- 
culty of the problem, at this later day, is the un- 
deniable fact that, while the Anglo-Saxon element 
of our society still remains predominant, the blending 
of bloods in our increasing population, even among 
those alone of the white Caucasian type, is incessant 
and irresistible, so that amalgamation, among races 
at least of the same complexion, appears the final 
outcome of our political problem. 

Some have held that the ideas of equality for 
which our American ancestors contended were only 
those of equality before the law — equal civil rights, 
— and that of all men, the British-born has ever 



262 IDEALS OF THE REPUBLIC 

been strongly reluctant to concede anything like a 
social equality. But this is exaggeration. It is 
rather in his strong individuality, in his sturdy 
personal regard for the independent rights of him- 
self and his household, that the Anglo-Saxon has 
figured historically, in contrast with the more sym- 
pathetic, submissive or emotional types of continen- 
tal Europe. The Englishman disdains others or re- 
mains indifferent to them until a better acquaintance 
and intercourse has compelled his respect; but he 
is not impervious to impressions. And he has. 
withal, a conscience and a profound sense of 
justice. 

Here, in this newly peopled continent of ours, 
where nature had to be reclaimed from primeval 
wildness, Englishmen of the great middle class 
settled together, leaving the old home behind. Their 
simple association as neighbors, exposed to common 
dangers, without a local ancestry or hereditary privi- 
lege of rank, and holding similar views in politics 
and religion — all tended to establish them social as 
well as civil equals. Sectarian affiliation in sets 
apart, the diverse opportunities for study or train- 
ing, differences of employment, might of course 
preserve in a measure those class distinctions to 
which they had been trained in Europe ; and yet the 
whole tendency of our institutions as royalty* loosened 
its hold, was to a social equality more real and com- 
prehensive than the old world had ever known. 
Titles of nobility never here took root. Scarcely 
any one at the outset of his career was rich enough 
to live in indolence or idleness; almost all married 
young and worked steadily to maintain home and 
family; while even in our most prosperous centres 



THE STRIFE TO SURPASS 263 

of trade, commerce and the professions, anything 
like a leisure class, such as London or Paris had 
bred, was unknown. Class differences, such as 
existed at all, were of the lesser kind; as between 
the college-bred who practised a profession and 
those brought up to business; as between traders, 
wholesale or reta.'l, and mechanics or simple laborers ; 
and for all of superior talent, though humbly-born, 
the way was fairly open to rise in life through worth 
and force of character. What Dr. Holmes used to 
call our " blue-blood " families were merely those 
whose males had been educated at college through 
two or three generations in succession. 

Any community of small farmers — of freeholders 
who apply head and hand to the moderate means of 
living, and who rear children, each on the paternal 
acres, — are sure to approach a social level in their 
common and congenial interests. They thus ap- 
proached, most of all, in the northern towns and 
counties of our New England and middle colonies, 
while yet we lived under the King ; and, ever since, 
under the stronger cement of free institutions, State 
and national, that widening sense of brotherhood has 
spread westward over this continent from the Alle- 
ghanies to the Mississippi; from the Mississippi to 
the Rocky mountains, and far beyond that distant 
barrier, adown the fertile slope remotely bounded 
by the Pacific seas. If society among our southern 
colonies and States was built up somewhat differently 
and with more squirarchal distinction, yet the same 
affinities prevailed, and among the planters or ruling 
set, at least, as among the poor whites, besides, a 
parallel social equality developed after its own 
peculiar pattern. Of exclusive class assumption 



264 IDEALS OF THE REPUBLIC 

with an exclusive nobility which imposes special 
obligation, we have known comparatively nothing. 



I speak, to be sure, of tendencies and not of well- 
rounded results. Social life everywhere has its in- 
equalities, and were all human brotherhood upon a 
dead level of commonplace, living would be as tame 
and uninteresting as prairie scenery. While the 
world lasts we are likely to find the prosperous and 
the unprosperous apart in intimacy, the zealous and 
the shiftless, the cultured and the ignorant, the 
refined and the vulgar, the upright and the vicious, 
the wealthy and the wretched, the striving and 
the hopelessly stranded. Condescension may be 
gracious, but it is condescension still. Conventional 
good society will not surrender its keys nor throw 
wide open its portals to the promiscuous multitude. 
There is a certain exclusiveness in all good fellow- 
ship, while home demands a sacred privacy. Against 
the flood of newcomers, the old regime puts up its 
barriers, while in the village which has expanded 
into a city the earliest dwellers and their descendants, 
now opulent, assert the preferential claim of first 
farmlies. Times and localities change in their sur- 
roundings, and the larger and more incongruous the 
mass of inhabitants, as years roll on, the more do 
social elements gather into groups. 

Yet, after all, we in our favored country have 
gone far towards solving the universal problem of 
neighborliness and good will, consistently with those 
habits of congenial association to which mankind 
must ever be susceptible. Nor have we ever had a 
ruling class, in the whole area of our society, higher 



THE STRIFE TO SURPASS 265 

in rank than that which England designates as 
commoners and France as the bourgeoisie. Such 
variations, then, as we find are only gradations 
among those of middle rank, and merit or well- 
disbursed wealth finds readily a recognition. Serf- 
dom does not now exist at all, nor had it ever a posi- 
tive status here except as applied to the negro race. 
And that lowest class of free inhabitants in all lands 
— unskilled manual toilers who depend in ignorance 
upon casual employment — has never remained 
long with us inert and stagnant. Pauperism and 
crime have been but passing elements in our midst. 
We know no peasant class, in the European sense of 
the word; our native mechanics and workmen are 
intelligent and rise readily in life; nor has the in- 
creasing demand for unskilled workers been latterly 
met, except from the humblest European alien 
element on the one shore, or Asiatic on the other, 
which comes and goes as the market demands. 
American society, in short, has fluidity, tends con- 
stantly to equalize, assimilating for the general good 
whatever element proves permanently useful to 
society, and refusing to solidify into caste or fixed 
conditions, or, on the other hand, to accept the 
avowed enemies of all society 



But the second grand impulse of our democracy is 
to incite each one to surpass, to improve original 
conditions and surroundings, to outstrip immediate 
equals and fellows in some particular, through the 
ambition of rising. And this we see operating in 
every line of achievement which invites a rivalry, 
though within the social limits which I have de- 



266 IDEALS OF THE REPUBLIC 

scribed. The poor farmer's son leaves rural sur- 
roundings and seeks the city to push and jostle his 
way to a mercantile renown. The humble orphan, 
against all disadvantage of birth and early environ, 
gains an education which may fit for professional 
life and win high distinction. One miserably born 
gains the highest official station in the gift of the 
people and proves his fitness for the promotion. 
Though aspirants be many, yet each avenue is open 
for such as would enter the race. In every walk of 
life, — political, industrial or professional, — we 
readily find leaders who have risen from the lowest 
to the highest in influence, and whose exaltation has 
been due to self-help, to superior energy and strength 
in laying hold of the opportunities afforded by the 
civilizing of a continent. Even in athletics or games 
of mental skill, one tries to break the record of past 
victories. 

Our whole social atmosphere stimulates to the 
betterment of individual life and its conditions. 
We may falter, we may fall ; but soon we rise again 
and our flight knows no perch save that to which 
mortality limits us. And herein is felt that incen- 
tive to surpass which makes of each true American 
more than a mere subject or citizen, born to a fixed 
condition in life which he must always occupy, with 
his forbears before him and his progeny in time to 
come. 

Where the great mass of a truly republican society 
is ambitious and progressive, each one seeking to 
better himself and to become superior to his sur- 
roundings, it must needs follow that much of this 
ambition and progressiveness will be confined to a 
narrow range of attainment, and to what proves 



THE STRIFE TO SURPASS 267 

after all but a sort of common-place excellence. 
One gains thus an increased comfort of living and 
better material surroundings — a finer house, costlier 
furniture and equipage, more style in dress, more 
show in society, a larger participation in the luxuries 
of life. And hence, as money brings such enhance- 
ment, most of all, the pursuit of wealth, riches or a 
competence, has been the most notable phase of 
ambition among average Americans. While we were 
yet young as an independent people and our daily 
life as a whole was still somewhat plodding and 
prosaic — or during the first half century of a na- 
tional existence — strangers from Europe were 
impressed by the ant-like push and industry which 
marked everywhere our earnest pursuit of business, 
as though to live at all meant mostly to acquire and 
accumulate. To them it seemed as though gayety 
and pleasure were foreign to us and that the grand 
symbol of our aspiration was the mighty dollar. 
And this because home, family and the domestic 
life engaged the common interest, and to increase 
home and household comforts and the standard of a 
simple style and respectability was the universal aim. 
Expenditure might be seen in the highest circle, 
but culture and refinement made little display and 
few could afford to live lazily. Privation and loneli- 
ness wrought out their work in reclaiming the forest 
lands and wilderness; and everywhere was strenu- 
ous progress. Aggregate gains came from individual 
improvement. No great contrasts appeared, in our 
vast north and northwest, between the dwellings 
of lofty and lowly, the rich and the poor, such as 
foreign countries are familiar with. Hovels of 
misery were few, while castles and palaces were un- 



268 IDEALS OF THE REPUBLIC 

known; even log cabins were the abode of self- 
respect. Beyond all comparison with Europe, the 
homes of our teeming millions were tasteful and com- 
fortably supplied. Our pride was not in the pictur- 
esque inequalities of life but in the high level of 
our mediocrity. 



All such American aspects have changed much in 
course of the last sixty years, and while we have 
broadened and beautified as a nation in many 
respects, equal social relations and the struggle for 
superiority by no means harmonize so nearly or 
square so closely with republican standards as in 
our earlier era. A luxurious and leisure class, having 
a disproportionate share of wealth, develops on the 
one hand, with a wretchedly poor and dependent 
one on the other; great heights and great depres- 
sions succeed in historical landscape the former 
smooth level. And prime among the factors in- 
ducing such a change we may reckon the immense 
growth of corporate establishments of great aggre- 
gate capital, which a favored few may control, in 
place of our former individual industries with 
distributed wealth. 

While men formerly pursued their vocation in 
life singly or in partnerships, one's whole capital of 
intelligence, industry and pecuniary means was his 
own, and in whatever enterprise he might embark, 
his whole fortune, his whole credit was at stake. If 
he succeeded, the success redounded to his happi- 
ness; if he failed he lost all. With a responsibility 
so momentous went a strong sense of personal honor 
and personal standing; eagerness of pursuit was 



THE STRIFE TO SURPASS 269 

tempered by a heedful conservatism. Competition 
too was open, for none could command great capital. 
But the nineteenth century proved epochal in the 
world's progress — for invention, for the triumphs 
of natural science, for the grand exploiting of the 
world's resources upon or below the surface. Steam 
as a motive power by land or sea did miracles of 
might; huge mills for manufacturing were organ- 
ized; railways and steamboat lines increased our 
inland traffic enormously ; and to the accessories of 
life were added such novelties as gas, the telegraph 
and telephone, and latest of all, electric light, heating 
and motive power. To develop and apply such new 
industries with many lesser ones, — and to open 
up the arteries of commerce, bridge wide rivers, 
work great mines of gold, silver, iron, coal, copper 
and other minerals, — large aggregations of capital 
became indispensable, such as individual and part- 
nership combinations were inadequate to supply. 
Hence grew rapidly the corporation method of busi- 
ness enterprise, which combines great wealth in 
fractional shares freely transferable, affording the 
maximum of organized direction with the minimum 
of personal responsibility for the enterprise itself. 
But monopolies, once exceptionally granted by the 
legislative charter of a single State, have become 
widespread, expansive, interstate of operation, with 
States competing in the very grant of charter 
facilities — almost universally applied to the great 
business concerns of life; until to-day their amal- 
gamation and absorption, in a growing strife to 
control gigantic industries and crowd out competi- 
tion altogether, make a spectacle at which theoretical 
democracy stands bewildered. 



270 IDEALS OF THE REPUBLIC 

It is difficult to surmise what will be the final out- 
come of such monopolizing conditions; amazingly- 
difficult to devise any practical means of stifling or 
extinguishing what many regard as a natural and 
inevitable outcome of our highly organized industrial 
life. It certainly seems impossible that we should 
ever return to former simplicity of methods or 
restore competition so that individual contestants or 
small aggregations of capital shall hold the field once 
more. 

The corporation has been of immense advantage 
to society in enabling great material projects to be 
successfully carried out. But it has brought pro- 
digious evils in its train, and one of those evils is the 
diminishing sense among business men of personal 
honor, personal responsibility, personal integrity. 
We hear much in these days of " good corporations " 
and " bad corporations " ; but this is a misnomer. 
All corporations are but legislative creatures; they 
are soulless and without morals, good or bad. Such 
an establishment is no more created presumably for 
fraud, wrongdoing or the achievement of pernicious 
ends, than a city or the legislature itself. Its real 
element for good or evil lies in the character of the 
individuals who work it, who possess control and give 
it direction. And since stockholders, and even the 
investors in its debt may be a legion, scattered 
everywhere and with holdings large or small, it 
follows that great money penalties imposed upon a 
corporation, or the ruthless destruction of its busi- 
ness, is largely an infliction upon a host of guiltless 
investors unable to control absolutely and directly ; 
among whom may be persons dependent upon 
moderate incomes, churches and charitable societies, 



THE STRIFE TO SURPASS 271 

widows, orphans and beneficiaries of small means, 
as worthy of protection as depositors in a savings 
bank. Nor should government show partiality, 
when some abuse is to be disciplined, by pursuing 
one corporation so as to do it all the damage possible, 
while others equally offending go clear and gain in 
the stock market. 

It is the directorate, the management, of any 
corporation, upon which public scrutiny should be 
f ocussed, for the men in power and they alone stamp 
by their official conduct the impression of good or 
bad. States should cooperate better in granting 
licenses to organize; and public regulation should, 
most of all, seek to curb promoters and managers in 
the misuse of opportunities, and, in the interest of 
stockholders, even more than of the public, compel 
them to honesty and prudence. Fraudulent devices 
to make dupes of investors; inner deals and bar- 
gains conducted for the secret and undue profit of 
directors at the cost of their fiduciaries; extrava- 
gant salaries and perquisites voted by managers to 
themselves and sinister contracts whereby they 
play from one hand into another against the common 
interest — all such abuses, so common now-a-days, 
should be rigorously dealt with at the law and each 
faithless representative himself should be compelled 
to disgorge and surrender. It is at such points 
that correction should direct its better energies, 
and not so as to further impoverish stockholders in 
the mass, who earnestly wish uprightness but cannot 
easily combine to make purgation. Pursue the 
faithless, the fraudulent, the self -aggrandizing among 
such directors as individuals; impose upon them 
the harshest penalties of the law and let them feel 



272 IDEALS OF THE REPUBLIC 

that the public reprobates their misconduct. Such 
men are socially proud and presuming; and if our 
criminal laws visited oftener with imprisonment 
high financiering such as we call stealing and robbery 
where the offence and offender are humble, our 
ethical atmosphere would be purer. 

It is not only that an individual sense of business 
credit and responsibility fails in these times, but 
that even fiduciary regard is often wanting such as 
ought to induce prudence and honest conduct in 
managing the common interests committed to one's 
charge. Any trustee or executor under a will is held 
fairly accountable in our probate courts, but corpo- 
rate supervision by or on behalf of stockholders 
appears sadly deficient as these organisms of com- 
merce expand and combine; and hence the many 
abuses of authority. The corporate magnate grows 
autocratic; he displaces subordinates who will not 
subserve his ends, and employs facile minions. He 
causes false entries in the books, false statements, 
false accounts. He employs astute lawyers in the 
interest of fraud and chicaner}-. He seeks by bribery 
and corruption to gain his ends with legislatures 
and public servants. 

And thus do we find the gulf yawning wider and 
wider between the rich and the poor of the land — 
between the few who seek to occupy all avenues 
to wealth and the many who are pressed to gain 
a livelihood by subserviency ; between favored 
families, here and there, who are building up colossal 
fortunes fit for princes, and the pinched majority 
who must accept wages and small salaries if they 
would live at all. False business conditions arise 
from such a state of things, while the spirit of specu- 



THE STRIFE TO SURPASS 273 

lation and plunder, the ambition to get rich quickly 
and live without continuous effort, gains mastery. 



Again, in the relation of labor and capital, as 
industrial unions grow gigantic, we see portentous 
danger. Not only does the distance between em- 
ployer and employed fearfully increase in pecuniary 
means, but the two classes grow farther apart in 
helpful intercourse. While men of moderate capital 
owned and ran their own industries, master and 
workmen stood side by side and were personally 
acquainted; human sympathy deepened solicitude 
on the one side and devotion on the other. Strikes 
were unknown in those days and the labor market 
was open. And so in a measure where corporations 
were small. But now huge capital organizes its 
resources and holds but remote and formal contact 
with labor, the high officials keeping aloof like 
officers of an army and trusting close dealing, as it 
were, to non-commissioned sergeants and corporals. 
Under such conditions of employment, loyalty in 
the employed becomes deficient or wholly wanting. 
Capital organizes on a vast scale to gather in, to 
appropriate, to monopolize; and labor in return 
organizes and seeks correspondingly to control the 
market. Demands and counter-demands are made 
through representatives and committees; strikes or 
lock-outs are ordered and funds wasted on either 
side in huge experiments of physical compulsion. 
It is not strange that in such brute contests of 
strength, capital should have the advantage; for 
money resources are on its side; and the higher 
advantage, too, of intellectual acuteness. For labor, 



274 IDEALS OF THE REPUBLIC 

in its best estate, promotes those worthiest, mentally 
and morally, to the class of employer; and any 
permanent class of laborers who live in constant 
dependence for their wages by unskilled manual toil 
are at disadvantage in a conflict, like common 
soldiers who would conduct a battle against trained 
generals. Violence, destructive energy against per- 
son and property are their weapon, unless fear of the 
law or an adverse public opinion restrains them. 

It is not, as some assert, mere manual toil that 
produces wealth in a mill community ; nor is it mere 
machinery. Rather is it the higher intelligence that 
can organize and direct the labor, or invent and ap- 
ply the machine ; and capital, moreover, bears all the 
risks, furnishes plant and materials and guides the 
whole enterprise, if it may, to profitable results. 
Labor, then, can effect little for wealth outside a 
farming class, without the skilful direction of 
capital. And hence a division of the fruits of in- 
dustry. The weakness of labor for legal redress 
consists in its poverty; the weakness of capital in 
that it cannot sue the moneyless in tort or contract 
with practical effect, and hence in the courts must 
rely upon injunction or criminal process for due 
protection. Each party, however, respects, in any 
contest, the opinion of the public to whom it appeals 
for sympathy and support; hence a new Canadian 
law deserves attention, which, admitting that arbi- 
tration cannot be compelled, provides, nevertheless, 
for every proposed strike or lock-out an impartial 
tribunal, such as public opinion should respect, to 
pass upon the issues involved and make report, 
before the harsh extremity shall be lawful. In the 
very effort each to establish the justice of its own 



THE STRIFE TO SURPASS 275 

case, both labor and capital may yield thus to reason 
and right. 

But labor and capital, in their widest range of 
separation, can hardly be called, after all, an in- 
digenous product. To European countries, rather, 
where class conditions are fixed, the distinction 
applies. The real American, born and nourished on 
our free soil, rises rapidly from a mere workman to 
skilled mechanic and employer of the unskilled. And 
thus do even intelligent and aspiring artisans from 
abroad — like the Scotch Carnegie, for instance — 
rise from the depths of poverty in our midst to 
become millionaires and multi-millionaires. Edu- 
cation and opportunity are the precious gifts our 
country has hitherto afforded and should always 
afford to every one. Said Abraham Lincoln, in a 
speech in 1854: "There is no permanent class of 
hired laborers amongst us. Twenty-five years ago 
I was a hired laborer. The hired laborer of yesterday 
labors on his own account to-day, and will hire 
others to labor for him to-morrow. Advancement — 
improvement in condition — is the order of things 
in a society of equals." J Nor was it many years 
after such utterance that this same man who had 
once ranged among hired laborers ruled the United 
States as chosen representative of the whole people, 
and made a name and fame to endure forever. 

I am American enough to dislike that exaltation of 
labor as embodied in a special class of manual 
workers — and a privileged one — whose members 
make boastful demonstration as peculiarly the type 
of a democracy. Our " labor day " means little but 
idleness and parade. We should have no affiliation, 

* Abraham Lincoln's Works, 179. 



276 IDEALS OF THE REPUBLIC 

real or pretended, with those destroyers of all 
property, all government, all stability of social life 
and order, whose schemes and dogmas are propagated 
in foreign countries as friends of the laborer. 



For citizens of a republic founded in equal rights, 
the remedy for prevailing ills lies largely in them- 
selves. They among us who have gained superior 
wealth and station should avoid such showy and 
profuse outlay as to excite the envy or foolish emu- 
lation of those less fortunately placed. Their style 
of living should not be ostentatious, even if expen- 
sive, and in generous bestowal they should discrimi- 
nate and set a just example. Tips, as we call them, 
which formerly no self-respecting American would 
accept from any one, are growing into an intolerable 
tribute for paid attendance; and we debauch an 
old-world practice which makes for class distinctions 
by exaggerating the gift beyond all reason and play- 
ing the grandee to fellow-citizens and fellow- voters 
who may chance to serve us. Supercilious demeanor, 
purse-proud arrogance, and even that good-humored 
prodigality of display to which as Americans we are 
more addicted, all tend to foster the spirit of caste 
and privilege, which among a free people should be 
kept down. 

A grand house and grounds, where you can afford 
them, will give visible delight to your neighbors, 
besides aiding the taxable resources of the com- 
munity. Fine furniture, books and tasteful works 
of art tend to general culture; nor would I dis- 
parage happy surroundings for any home life, com- 
mensurate with one's means. Yet the American 



THE STRIFE TO SURPASS 277 

home should be the abode of good taste and con- 
venience, and not provoke society by its owner's 
lordly assumption. In no respect is a man so entitled 
to consult his own wishes as in the style and manage- 
ment of his household according to what he can 
afford; but when it comes to emulating a nobility 
abroad in exclusive parks and preserves, a pompous 
retinue of menials, and those showy and selfish 
accompaniments of domestic life which foster the 
spirit of luxurious contrast, republicans born may 
protest. We encourage the display of wealth in our 
women folk ; and they make costly dress and adorn- 
ment to please us. But men I have known and 
respected, who refused to set up a showy coach and 
livery when they could afford it, because heedful 
of native prepossessions and wishing to set a demo- 
cratic example. 

Of all recent inventions for the pleasure of the rich, 
nothing, it seems to me, widens so impressively class 
jealousies among us as the automobile. This costly 
toy, which only the few can afford to keep and own, 
is the symbol and epitome of obtrusive arrogance 
towards the multitude, offset only by the danger it 
brings to those themselves who use it. The gorgeous 
coach and six which scattered the dust as it bowled 
along harmed little, after all, and took only its own 
share of the road. Of turnouts with a horse there are 
still all sorts and kinds for the people. Our mon- 
strous electric cars are for the multitude, and if we 
keep clear of iron tracks we are safe. But an auto- 
mobile appropriates the whole road and right of 
way; with tooting horn and malodorous breath it 
speeds like a dragon, death-dealing, ravaging roads 
which others are taxed to maintain, exposing to sure 



278 IDEALS OF THE REPUBLIC 

danger those who ride by old-fashioned modes, and 
sending pedestrians at the street crossings in flight 
for their lives. For at the slightest pressure of a 
lever this conveyance will rush like a locomotive, 
while mischance or misdirection may impel it hither 
or thither so as to make not even sidewalks safe. 
If, as now seems likely, this motor car is still to roam 
at large, despite the new dangers it has brought to 
travelling, two things should force attention: its 
use should be clearly limited by license and inspec- 
tion; and, on the general behalf, certain roads 
should be closed against it altogether. 



They whose means are ample may, in a society like 
ours, disarm envy and keep down presumptuous pride 
while yet enjoying in a true sense their earthly bless- 
ings. They may give liberally with discretion and 
may foster good works of religion, learning and 
philanthropy. Indeed, a private tithe for charity 
ought to be set aside systematically from every one's 
income, as he may afford, not less than for the public 
taxes. Nothing, hitherto, has so exalted our Ameri- 
can life, despite all eager pursuit of wealth, as the 
generous spirit of so many rich among us, in endowing 
and maintaining by voluntary gift or in supplying 
government with the sinews of strength at times of 
public danger. We honor the memory of our 
Franklins, our Girards, our Lawrences, our Hop- 
kinses, all self-made men. Even they who have 
heaped up their hoards by ruining rivals wilfully 
may make amends with society, almost if not alto- 
gether, and lay up reparation for the hereafter, by 
bestowing in the interest of their fellow-men before 



THE STRIFE TO SURPASS 279 

it is too late. And, under all circumstances, a 
private fortune which helps build up, broaden and 
liberalize, and makes its owner instrumental to the 
happiness of others, is well borne. 

I suppose the time will never come, unless in some 
golden age far distant, when the highly prosperous 
lead simple and abstemious lives as a class and cease 
to flaunt their prosperity. Self-denial we leave to 
the hermit or enthusiast who is rarely rich at all. 
The wealthy, unless mean and miserly, seek a liberal 
style of living, add luxury to comfort, love jewelry 
and costly clothes, spend lavishly in entertaining 
to gain social position, and think they benefit 
the poor and humble when they scatter coin as 
though to proclaim their own superiority. Fortu- 
nate, indeed, if the vulgar who suddenly gain riches 
do not waste their lives and money in low and 
sensual pleasures and all the " superfluity of naughti- 
ness." Yet fortunes are better preserved by ambi- 
tious founders than when our political experiment 
began; so that through guarded marriage alliances 
and those refining advantages which wealth affords, 
another generation born to affluence may give some- 
thing of stability to social rank even in our republi- 
can society. The danger lies in letting such stability 
gain too much of a family permanence. 



One more corrective to an undue strenuousness 
in life which we Americans should cultivate is to 
moderate our zeal for mere money pursuits and place 
a limit to eager accumulation. One's aim in life 
should rather be to conform his career to native 
conditions of plain and moderate living. Some one 



280 IDEALS OF THE REPUBLIC 

has well said that for those who live beyond the age 
of three-score and ten, the seventh decade should be 
a sabbath of rest after Divine example. And true is 
it that, as in early youth we look forward, intent to 
enter upon an active life, so, when old age approaches, 
the means and method of withdrawing happily 
and hiniri'z'.y ::::;_ kzv":zi-=s sh:uli enr^e :ur 
thoughts. It is a mistake which we Americans so 
often make of devoting youth and mature life alike 
to active business pursuits until, like overripe fruit, 
we drop to the ground with juices spoiled and decay 
there useless. In the old-world civilization whence 
we were derived, where the great middle class have 
long handed pursuits from father to son, one thinks 
his paternal work well ended when he gives over the 
business in good condition, as his children grow up 
qualified for responsibilities, and rewards himself 
with a respite of ease and retirement. 

For our daughters — if they keep to the lesser 
sphere which convention once assigned them — let 
us provide portions and an easy income, if we may; 
but for our sons, in most instances, and surely for 
scions competent in life and fit to win a livelihood 
for themselves, the greatest boon we can confer is 
that of starting them promptly and well upon their 
own careers, while the bestowal most likely to prove 
a curse is to endow them early with effortless luxury. 
I en for ourselves, we may lay up an ample compe- 
tence to withdraw from business risks at fifty, while, 
by continuing therein twenty years longer, we may 
lose all and die in indigence. It is well to study 
then how to grow old gracefully. National wealth 
and welfare do not require that each shall keep on 
heaping up his ambitious pile; for the incessant 



THE STRIFE TO SURPASS 281 

strife to surpass fills quickly the vacancies made, 
while it affords true opportunity to the young, the 
needy and rising, of the coming race. The noblest 
stage of human existence — both for its possibilities 
of good to others and the broadening scope it gives 
to one's own achievement — is often that of retire- 
ment from business activities, and especially from 
such as are sordid and vexatious. In travel, in 
books and observation, in kindly contrivement for 
fellow-men and the welfare of society ; in the solace 
of private life or by imparting wise thoughts and 
suggestions ; in unrecompensed activity or a pecuni- 
ary support on behalf of worthy objects, one who 
has thrown off the harness of routine work and 
labor and is blessed with a competence may extend 
his sphere of usefulness upon earth and gain when 
gone a blessed memory. Nothing can so fend off 
destructive socialism or anarchy in the land as the 
example of willing help to others by those privileged 
to afford it. 

Yet, on the whole, viewing the general range of 
opportunities public or private — and surely, one of 
independent means has superior advantage for seek- 
ing a high public career, — I am of opinion that it is 
better for most of us to begin life poor enough to have 
our own living to make, and to achieve by our own 
exertions; so that, if we inherit at all, we shall 
inherit only when mature in years and experience, 
after having learned to lay up something of our own 
and to comprehend what money itself is good for. 



Government has its own duties to perform, directly 
or indirectly, for promoting in the republic that 



282 IDEALS OF THE REPUBLIC 

harmonious adjustment between social equality and 
the ambition to surpass which should always exist. 
But government is for mankind, not mankind for 
government. The enormous expenditure which 
ambitious nations keep up to-day in troops and 
battle-ships bodes no good. In times of profound 
peace we make warlike menace through rivalry; 
we tax ourselves for almost the money cost of a war, 
in order to prevent war; the premiums paid for 
insurance amount to nearly the face of the policy. 
Let the great powers make treaties together for 
disarmament; and let America, most of all, cease 
to dread, by giving up Asiatic conquest and making 
supremacy on this hemisphere, as formerly, her 
sufficient mission. 

Except for promoting peace and good order, a 
government like ours should do little more than to 
encourage private enterprise and keep clear the 
avenues of opportunity. Protection in any paternal 
sense is sure to breed privilege and partiality. A 
tariff standard ought to be periodically adjusted to 
economic needs with fairness both to producers and 
consumers among the people ; nor can it be said even 
yet, I think, that our national policy on that issue 
has become permanently fixed, beyond recognizing 
the immense extent and variety of our home market 
for demand and supply. If high tariff be not literally 
the mother of trusts, as some have claimed, it cer- 
tainly over-nurses them ; consumers are bled for the 
producers, and even though labor might seem to 
share in the enhanced profit of an industry, the 
profit of the protected employer is relatively far 
greater. 

To check the disparity of wealth among our 



THE STRIFE TO SURPASS 283 

people by other means than withholding privileges 
is not impossible; but laws should be equal and 
equally administered. National decay impends 
where 

" Laws grind the poor, and rich men make the law," 

and where, too, on the other hand, the poor, by 
right of a majority, put burdens too heavily upon 
the prosperous and rob individual or corporate 
energy of its fair reward. As to taxing incomes and 
inheritances, our States levy already to a consider- 
able extent, and, indeed, in the latter respect, vie 
with one another contentiously ; and the question is 
always pertinent whether Congress shall, under no 
great stress of emergency, superpose national burdens 
of this kind, to the double despoilment of wealth 
or so as to deprive State governments of their just 
resources. That government is, after all, the best 
and the best borne, which avoids a vast surplus as 
it would a vast deficit — which simply collects from 
the people what revenue it needs and pays out faith- 
fully what it owes, leaving no balance of consequence 
behind and no arrears. 



How, we may ask, should government deal with 
transgressors of the law? It should pursue them 
with justice and discretion and punish for the general 
good; its zeal should appear not for popularity or 
political effect, but so as to impress by example ; its 
motives should neither be vindictive nor open to the 
charge of favoritism. For general enforcement of 
the laws, our courts stand always open to individual 
suitors — and, moreover, to the aggrieved instiga- 



284 IDEALS OF THE REPUBLIC 

tors of a prosecution. Government itself may of its 
own initiative proceed against offenders; yet the 
administrator who seeks a tribunal of justice should 
not regard himself as both judge and prosecutor. 
Indeed under our well-ordered system, President or 
governor is encouraged to discriminate in the public 
interest ; since our constitutions give him full power 
of pardon and amnesty for offences and permit him 
broadly to temper the justice of the courts with 
mercy. When I say " to discriminate," I do not 
mean so as to spare individuals alone in a certain 
class of offenders, but so as to pardon a whole class 
of past offenders; for an executive should be most 
of all intent upon what the immediate good of the 
body politic requires. 

Nor is it needful in the public interest that our 
chosen executive should, with his many important 
functions to perform, be always intent, or keep the 
people intent, upon pursuing and punishing. Ad- 
ministration is not a steeple-chase, for a constant 
tally-ho, in running foxes to cover. Much may be 
done by warning, by holding up ideals of duty, by 
encouraging the community to keep the right path. 
But the rod of discipline should not always be 
brandished, nor a culprit's foes or the immune be 
incited to gleeful vindictiveness. There is not, I 
suppose, a male reader of this page who has not at 
some moment of temptation in his life committed a 
wrong of some kind which might have been crimi- 
nally punished. And whether the offence, more or 
less heinous, was ever disclosed to others or not, has 
he not been better in the end by having his own 
conscience left to its secret remorse and repentance 
for lifting eventually his better nature? If a court 



THE STRIFE TO SURPASS 285 

of justice must intervene, let it do so, at least, in 
soberness and regret ; and let rulers beware of setting 
class against class intemperately ; of encouraging 
failure to down success, of punishing the ownership 
of property, as such, rather than the wrongful 
acquirement or the wrongful use of property. 

And furthermore, I would suggest, that as mag- 
nanimity becomes a commonwealth and its chosen 
magistrates so may it sometimes be wise and prudent 
to give transgressors notice in advance of an intended 
purpose, and prevent, if possible, guilt in the future 
while giving some measure of amnesty for the past. 
Statutes themselves may be uncertain or misunder- 
stood. Let us recognize a situation in which pardon 
or forbearance may have more salutary effect than 
stern retribution. Public policy itself, in the rapid 
change of men and parties in power, is often fitful 
and variable, among a people like ourselves. For 
one term of years our rulers permit and encourage 
abuses to spring up and spread, while commending 
that private enterprise which develops boldly, by 
risk of capital, the general wealth and prosperity; 
and then in another term we undertake to punish 
those abuses of the enterprise, of which government 
was long heedless, though cognizant, and which 
should have been checked earlier. Timely constraint, 
the prevention of wrongs incidental to the social 
and business life of our people, is what government 
needs, but greatly lacks. We are easy-going in 
enduring ills before they become grievous; we 
change rulers, policies, methods, and with them our 
public moods ; we suffer ills to creep into our system 
and only unite to put them down when they become 
intolerable. 



286 IDEALS OF THE REPUBLIC 

There is much extravagance at the present time in 
the passion for throttling, managing and harassing 
the so-called public-utility corporations. If public 
rate-making and interference is so desirable for such 
concerns, why not for others, besides, which make 
for popular comforts in life — for industrial corpora- 
tions which deal in beef, oil, sugar, for instance, or 
for the makers of clothing fabrics? Newspapers we 
find, employing large vested capital, which thrive 
upon all such popular agitation and excitement; 
and when we ask how their owners would like to 
have subscription and advertising rates fixed by 
some political commission, they say that the public- 
utility corporations stand differently, because they 
have public favors. And what are these public 
favors? Railroads are allowed to take land they 
need by paying well for it ; and in times when their 
enterprise was thought to bring local prosperity, a 
grant of vacant public land was sometimes given 
besides. Water, gas, and electric companies have 
been granted the use of public highways, from like 
considerations of local advantage and comfort ; and 
then we see rival competitors privileged in like 
manner, to the ruin of reasonable profit. And have 
not industrial concerns and mills also received public 
favors? Study closely the schedules of our present 
high tariff. Newspapers, too, claim the fostering 
solicitude of government. The postofftce admits 
their matter at losing rates; and when the cost of 
their paper pulp is found enhanced by a protective 
policy they urge Congress to change the law for their 
special benefit. The radical trouble to be treated is 
our inordinate American greed, in all business 
pursuits, for undue profit, for excessive wealth, for 



THE STRIFE TO SURPASS 287 

appropriating selfishly whatever pecuniary advan- 
tage may be anywhere in sight. Even farmers and 
planters combine to force up the price of their corn, 
wheat or cotton to the highest point. Our difficulty 
is not so much with the public-utility corporations 
as with the whole business public itself. Regula- 
tion should not mean strangulation. The legislature 
or the city council should grant corporate favors on 
all occasions with justice, honesty and discretion; 
public policy should go by fixed principle and the 
rule of fair bargaining; and the more that public 
regulation is insisted upon, with any corporation, 
the fairer, as an offset, is it that ruinous competition 
be kept down and something of a monopoly per- 
mitted. Why mainly the common law put its own 
fair constraints upon all those engaged in public- 
utility pursuits was, not that they enjoyed special 
privileges, but because the public had to trust them. 



Each succeeding administration in a republic 
impresses its character and example upon the people 
governed. If rulers are violent and menacing in one 
direction or another, the people become violent and 
menacing too. That country is the happiest, the 
most prosperous and the most virtuous, whose 
rulers personify simple honesty and patriotism, and 
whose administration moves on in serene majesty, 
like the planets above us. The Massachusetts 
charter of 1780, which I have so often quoted in 
these chapters because it formulated after much 
deliberation the ideals of our thirteen original States 
in a most expanded expression, recommends, besides 
other things, that government should encourage 



288 IDEALS OF THE REPUBLIC 

" good humor " among the people. We, as a people, 
at this advanced stage of our national progression, 
have gained a world renown in that respect, which 
our ancestors had not in the earlier days of experi- 
ment. And the unifying influence of good humor — 
whose supreme exaltation is joy — has been well 
expressed in those noble lines of Schiller which 
Beethoven set to immortal music: 

" Thou canst bind all. each to other, 
Custom sternly rends apart ; 
All mankind are friend and brother, 
Where thy soft wing fans the heart." 



A NEW FEDERAL CONVENTION 



A NEW FEDERAL CONVENTION 1 

MORE than a century ago, when the first 
compact of American Union had proved 
inadequate to its ends, and the amend- 
ment of that compact by the unanimous consent of 
the thirteen States was found impossible, our fore- 
fathers made appeal to a general convention. It 
was their last resort ; a drastic remedy, and yet the 
only one for the political ills they suffered. Well 
might a minority of the people, averse to radical 
change, still clinging to State sovereignty and the 
Confederate idea, have dreaded such a gathering; 
for from the throes of that general convention which 
met in 1787 at Philadelphia issued a new-born nation. 
There. was in those days something ominous, some- 
thing revolutionary, in the very word " Convention." 
It was the " Convention " that in France, not long 
after, held the torch to anarchy and misrule. On this 
continent, conventions in the several States had 
lately cast off the cords of colonial dependence and 
organized new republics. Of social, religious, or 
business conventions, such as posterity has grown 
familiar with, little was then known in a local and 
far less in a national sense. That political or party 
convention which in our own age puts forth plat- 
forms and candidates, had as yet no being; and 
by " Convention " was meant, rather, in the eight- 

1 From the author's address at Cleveland, Ohio, in December, 1897, 
as President of the American Historical Association. 

201 



292 IDEALS OF THE REPUBLIC 

eenth-century parlance, a solemn gathering of 
the people's representatives; an assembly from 
the depths, freshly chosen, to change and supplant 
existing institutions. For that supreme function of 
the body politic our Declaration of 1776 had in the 
name of all the American colonies given warrant, 
by announcing that " whenever any form of gov- 
ernment becomes destructive of its fundamental 
ends, it is the right of the people to alter or abolish 
it, and to institute a new government." That basic 
right was by 1787 fully recognized. Commonwealths 
like Virginia relied with confidence upon that popular 
fundamental right implied for future exercise, with- 
out the shadow of a written suggestion in the State 
instrument itself as to how practically it should 
in the future be amended. 

What, therefore, the people of our several States 
might fundamentally ordain for altering the local 
organic law whenever needful, the good people 
collectively of these United States had equally 
an inherent right under Confederate safeguards 
to accomplish. Yet in this expanded sense the 
convention of Philadelphia was a novelty, and con- 
tinues such to this day. State conventions have 
since met to frame and submit new amendments, 
new constitutions, but a Federal convention never 
again. Prior to 1787, and throughout the long and 
agonizing contest with Great Britain, the Conti- 
nental Congress had been for these United States 
the only real convention. Congress was the con- 
vention throughout that long struggle, and the 
convention was Congress. Doubtless the sublime 
fame of Washington as commander in chief shone 
out the more resplendent in that simpler age because, 



A NEW FEDERAL CONVENTION 293 

in his own military person, he was throughout the 
Revolution the sole embodiment of a Federal Execu- 
tive, to contrast with that single chamber, assembled 
as a legislature behind" closed doors, that commis- 
sioned and controlled him. How different the aspect 
in our late civil war, when, under our reconstructed 
Federal system, we saw the fame of the greatest 
generals in the field eclipsed, partially at least, by 
that of a President, whose official guidance in full 
panoply, as political and military leader of the 
people, made him preeminent above all subordinate 
warriors or statesmen who cooperated in his success. 

In a national sense, then, the convention of 1787 
stands alone in our annals. Yet during the long 
intervening years, America has seen that marvellous 
scheme of united government extending its scope 
over a continental area and population such as the 
fathers could scarcely have conceived. And yet 
with all this wonderful increase of the nation in 
area and numbers, not only has revision of our 
Federal instrument been constantly wanting, since 
that first completion of the convention plan by the 
States adopting it, which was formulated in the 
first ten amendments, but for specific improvement 
in the plan there is absolutely nothing to show, 
save for two casual corrections in detail, which after 
the space of sixty years were followed by the three 
famous freedom amendments of civil war, written 
indelibly in blood. 

One might almost suppose that constructive states- 
manship, in a Federal sense, ceased with the eight- 
eenth century ; but when we turn to the experience 
of States and to State organic law, we are taught a 
different lesson. There we see the American political 



294 IDEALS OF THE REPUBLIC 

mind and American ingenuity still at work ; and the 
spirit of organic change and improvement strong, 
constant, and irresistible. There we perceive new 
constitutional amendments, new organic instru- 
ments, proposed and adopted for States both old 
and new, until at the present time Massachusetts, 
alone among the thirteen original commonwealths, 
preserves a constitution of earlier date than our 
Federal instrument; and even that constitution is 
so patched with amendments that little of the 
original garment remains visible. From this State 
point of view we discover that America has ad- 
vanced far beyond the age that gave birth to our 
Federal Constitution in ideas of practical self-govern- 
ment. Admirable, no doubt, was that common 
scheme, and high advanced in humane ideas; and 
in the general adjustment, as between State and 
Federal authority, as well as in the general poise 
of the three great departments, it can hardly yet be 
improved. Nor did the delegates who sat at Phila- 
delphia show sound wisdom in any provision more 
than in that which allowed representation in the 
House of Representatives and in the choice of 
President to be shaped and regulated as opinion in 
the several States might conduct. But what our 
generation may claim by way of criticizing this 
famous instrument is, that States have developed 
organic improvements of practical detail in govern- 
ment to suit our modern society, which well deserve 
to be nationalized. 



I have said that no Federal convention, for the 
merest revision, even, of our general system, has 



A NEW FEDERAL CONVENTION 295 

met since 1787. But something like an approach 
to such revision occurred in 1861, when leaders of 
the cotton States, experienced in national councils, 
undertook to organize at Montgomery a Southern 
Confederacy. In closely adapting the constitution 
of the old Union to their united wants they made 
various changes in the Federal mechanism, some 
of which we might, I think, judiciously copy. I shall 
not here provoke discussion of a cause overwhelm- 
ingly defeated, but merely emphasize by such a 
reference the fact that a body of men, ripe in public 
experience, can hardly, in this modern age, apply 
their minds together to our Federal scheme without 
discovering, from State example alone, some parts 
of that system that are worth amending. 

First of all, in the very methods pointed out for 
organic change we see in that Federal instrument 
imperfection. The door of amendment for so pro- 
digious a system of Union may well prove difficult 
to open ; nor do I deem it so practical an objection 
as many do that ratification of every Federal amend- 
ment by three-fourths rather than two-thirds of 
the States is there enjoined, since experience shows 
that a basic change to which a decided majority 
of the States is once strongly committed will readily 
widen its impulsion to a greater number. But a 
more serious difficulty appears in the initiation of 
Federal amendments. Here, we find, there may be 
either initiation by States or initiation by Congress. 
Whenever two-thirds of the States, through their 
several legislatures, propose a convention, Congress 
must call it ; and the danger then arises that changes 
so crude, so numerous, and so incongruous might 
proceed from any plenary convention of the kind, 



296 IDEALS OF THE REPUBLIC 

not intent upon gaining some special end, that the 
American people would run the instant risk of being 
launched, at length, into a worse rather than a better 
government. To this the alternative is that Con- 
gress shall, by its own two- thirds vote of both 
Houses, propose specific amendments; and such, 
hitherto in our annals, has proved the only accept- 
able course for initiating organic change. But how 
can we expect both Houses of Congress to unite 
readily by such a vote in proposing amendments, 
however salutary, which would cut down the patron- 
age and influence of either branch? Should, then, 
a convention be ever compelled by States under the 
former method, it would be well for those States 
in concert to frame concrete propositions of amend- 
ment carefully in advance, and for any Federal 
convention, moreover, to put forth propositions 
for a separate vote, so that all need not stand or fall 
together; for thus may the people, in passing upon 
the whole work, sustain the good and repel the bad. 
More than this, it would be well if our Constitution 
clearly authorized a limited general convention; 
and here we note that the Montgomery plan of 
1 86 1 made it obligatory on the Confederate Congress, 
whenever a certain number of States concurred in 
proposing specific changes, to summon a Federal 
convention, which should consider and act upon the 
specific proposals alone. 



Now, to subject to criticism the first and chief 
topic of our Federal Constitution — the legislature 
— our modern American age may fairly ask, by 
way of specific change, that Senators of the United 



A NEW FEDERAL CONVENTION 297 

States be chosen by the people of a State at large. 
Such a change would conform to general political 
usage at this day, and State voters may well feel 
that a fundamental right is denied them so long as 
their representatives in either branch of Congress 
continue to be chosen otherwise than at the polls. 
That legislative practice, though originally com- 
mendable, proves pernicious in the course of a 
century. 

Next, to consider improved modes of Federal 
legislation. On all subjects within the scope of 
Federal authority Congress may enact by the bare 
majority of a quorum in both Houses unless the 
President chooses to arrest the measure at its final 
stage by his official veto. Such is and has always 
been the rule of our present Federal establishment. 
But this by no means conforms to later State 
usage, as shown in State constitutions. On the con- 
trary, our American tendency is clearly to interpose 
greater barriers to legislation, on some topics at 
least, than the majority will of a bare quorum in 
each chamber. The number of States increases con- 
stantly where the fundamental requirement for the 
passage of all new legislation, or at least the most 
important part of it, is a majority of all elected to 
either branch. Nor to depend too much in a republic 
upon the Executive veto (a recourse which gains in 
popularity as time goes on, and yet might fail us) 
our State constitutions in various instances con- 
strain the legislature in its own original action by 
insisting upon a larger fraction to pass the measure 
than any mere majority. To apply such a rule in 
amending our Federal instrument, a two-thirds 
vote in each branch of Congress might, perhaps, be 



298 IDEALS OF THE REPUBLIC 

insisted upon, in borrowing and pledging the public 
credit beyond a certain limit, in changing the cur- 
rency, or so as to restrain unlimited appropriations 
or the declaration of war. Under the Montgomery 
constitution, to which I have alluded, the Confed- 
erate Congress could not appropriate money, except 
by a two-thirds vote, unless the appropriation 
had been asked by an executive department, or was 
for the expressed contingencies of Congress, or for 
some private claim already judicially established 
in the Court of Claims. 

In no respect, as it seems to me, is it plainer that 
more than our present bare majorities of a quorum 
should be required, than in such momentous legis- 
lation as disturbs our national equilibrium by ad- 
mitting new States into the Union or by sanctioning 
the acquisition of alien territory with an alien popu- 
lation. In the latter respect we seem simply to 
have gone forward without clear warrant from our 
Federal charter at all. When President Jefferson 
gained by treaty the great Louisiana purchase, ex- 
tending the Union by nearly half a continent, he 
candidly confessed his belief that a permissive 
amendment to the Constitution would be needful; 
but yielding his views to those of his party friends, 
he made for these United States the first real prec- 
edent of foreign annexation by treaty. Public 
approval here resolved whatever doubts might have 
arisen, and the precedent was repeated, under 
Monroe as a successor, when Florida was purchased 
from Spain. Both acquisitions were peaceful and 
honorable. 

No readjustment or change under our Federal 
compact seems needful as concerns the general 



A NEW FEDERAL CONVENTION 299 

powers of Congress or of the Federal Government. 
In that respect, certainly, the fathers were eminently 
judicious ; and all that posterity can yet do is to bring 
some suggested changes into the forum of discussion. 
It need not be thought surprising that men of some 
party affiliations may wish Congress prohibited 
altogether from allowing bounties or extra com- 
pensation, or from appropriating for internal im- 
provement, or from passing tariff acts of a protective 
character, while those of some opposing sect will 
welcome broad paternalism. National divorce laws 
and a divorce system may on some grounds be highly 
desirable, yet Congress could hardly pass a bill on 
that subject which would not be thought too lax 
in some States and too strict in others. To turn from 
express powers to the express prohibitions of our 
present Constitution, it is curious to observe that, 
while in 1787 our Southern staple raisers caused 
the denial to the Union of all right to levy export 
duties on American products — whence it happens 
that our customs-revenue system is always one- 
handed — the posterity of those planters expressly 
authorized such a tax when creating the Southern 
Confederacy (though under the constraint of a two- 
thirds vote), and hoped much financially for their 
cause from such a revenue. Would it be possible, 
then, to remove at this late day that express pro- 
hibition of our Federal instrument? On the other 
hand, there are prohibitions which deserve to be 
added to those already manifest in the organic text. 
For my own part, there is one express prohibition 
to the States which I would wish to see literally ex- 
tended to the Union, so as to make positive and 
comprehensive what our people long supposed was 



300 IDEALS OF THE REPUBLIC 

the fundamental effect ; and that is, equally with the 
States, to forbid the United States to emit bills of 
credit, make anything but gold and silver coin a 
tender in payment of debts, or pass any law impair- 
ing the obligation of contracts. 

Among miscellaneous clogs upon legislation that 
we find to-day in State organic law some might per- 
haps be fairly fitted to Congress. Thus, appropria- 
tion bills shall contain no " riders," no extraneous 
provisions; no law shall be passed on the day set 
for adjournment, but bills may then be enrolled; 
on some designated date all acts of the session not 
otherwise fixed expressly in point of time shall take 
effect, and all retrospective laws are forbidden. 



To pass to the Executive : the foremost change of 
all to be desired in this department of Federal ad- 
ministration is in the mode of electing our Chief 
Magistrate. In these days, governors of the States 
are chosen once and finally at the ballot box, and 
where no one is found on the official count to have 
received a majority of the popular vote, a plurality 
almost universally decides the result. For political 
experience teaches plainly that the highest candidate 
among several should come in, rather than have 
repeated contests at the polls or refer the test to 
any umpire. But here the fundamental law of our 
Presidential elections is altogether redolent of the 
eighteenth century. In the first place, popular 
elections elect only an electoral college, and next, 
where no candidate for President receives an ag- 
gregate majority vote in those colleges, a plurality 
effects nothing, and the right of final selection reverts 



A NEW FEDERAL CONVENTION 301 

to Congress, or rather to a House of Representatives 
whose term has nearly run out. Nothing can be 
more obnoxious to modern American sentiment, 
more unpopular. Until the people's will shall 
sufficiently establish the title and legitimacy of each 
Chief Executive, hidden perils are liable at every new 
four years' encounter. As for changing the present 
term of the Presidential office, opinions will differ. 
The Montgomery government set up a tenure of six 
years without reelection instead, but a large part 
of our people are doubtless well satisfied to leave 
the Presidential term as the fathers fixed it, with full 
right of reelection, limited, however, by custom or 
by fundamental law, to eight years. For the time, 
moreover, of entering upon the duties of Chief Mag- 
istrate, and so correspondingly for the commence- 
ment of each successive Congress, our historical 
4th of March became originally set by a casualty 
of legislation; that date ought, as it seems to me, 
to be shifted backward, and certainly not forward. 
And here again it is worth mentioning that, in the 
calendar of the Montgomery establishment, Wash- 
ington's birthday, the 2 2d of February, was sub- 
stituted. 

Nothing perhaps in our constitutional system 
has more generally commended itself in a national 
sense, or has been more widely copied by States, 
than lodging vast power in the hands of a Chief 
Executive, to offset that of the legislature. For if 
Congress must be considered as the assembled 
representatives of our people, arranged by States or 
constituencies, the President is himself the repre- 
sentative of the whole people, chosen differently, 
and responsible after his different fashion. In other 



302 IDEALS OF THE REPUBLIC 

words, executive and legislature act each as an im- 
portant check upon the other. 

Impeachment, I may further add, as a means of 
punishing civil officers, Federal or State, is now 
almost a bygone remedy, for our modern legislature 
is too busy with other affairs to organize and sit 
as a court of justice, and the ends of justice are liable, 
moreover, to defeat where political interest is strong. 
States set now-a-days the example of a summary 
removal of civil subordinates by the legislature or 
executive on a two-thirds or three-fourths vote in 
each House. Or if such subordinate be thought 
guilty of crime, he may be prosecuted in the courts 
under the usual safeguards of a trial, and, if found 
guilty, disqualification from office may be entered as 
part of the sentence. Impeachment in practice, 
under our Federal Constitution, has been found 
mainly useful only for getting rid of some incum- 
bent of the inferior courts whose honorable tenure 
of good behavior is justly forfeited by some offense 
not political. 



G:i'= kingdcm is perfect in type: Gczs :a"^5 are 
unchangeable The same human crganisrr. that 
received into its nostrils the breath of life, the spark 
of divine essence, stall walks the earth fashioned 
physically as in the first historic age. But man's 
conceptions seek to fathom the mind of his Creator, 
and whatever he may invent, be it in matter or 
spirit, his first rude result yields gradually to a better 
sense of utility. How different the earliest printing 
press, the first steam engine of civilization, from 
the latest combined product of human brains that 



A NEW FEDERAL CONVENTION 303 

incubate in succession upon the novel idea! So is 
it, too, in human government. Politics is properly 
an induction. The philosophic mind when once 
aroused seeks ever how to conform by change and 
improvement the institutions of society to God's 
perfect plan. These are the pillars modelled by our 
Divine Architect, who teaches mankind to imitate 
in all things. There is no real statesmanship which 
is not conservative of whatever is good in past results, 
nor is there real statesmanship which is not on the 
whole progressive. " Applaud us when we run," 
says Burke, " console us when we fall; cheer us 
when we recover; but let us pass on — for God's 
sake, let us pass on." 

In geographical site and supremacy on this new 
hemisphere, and in the knowledge of self-govern- 
ment at the start, were grand advantages for this 
American mission to society. Foreigners said long 
ago that there was less philosophy among our people 
but a better application of it than anywhere else. 
Perhaps it should better be said that we have a 
philosophy of common sense clear enough to our- 
selves to be applied for immediate ends. No intel- 
ligence can on the whole be so safe for public guid- 
ance in affairs as that of millions of intelligent and 
honest freemen. For the wisest of statesmen in his 
own conceit is like the captain of a vessel who sets 
his helm by the compass, and seeks, in disregard of 
wind or weather, to reach port by a straight line. 
The true politician, it has well been said, is rather 
" the philosopher in action," who finds proper means 
to public ends and employs them with effect. 

Our written systems of government, State and 
Federal, our organic institutions, are excellent. 



304 IDEALS OF THE REPUBLIC 

They furnish their own patterns of expression. Other 
communities, in the New World or the Old, may- 
copy and adapt as they choose. Under them we 
are kings, kings by right of the majority, if we do 
but know it. No citizen need despond, nor suffer 
from tyranny, if he uses well the franchise bestowed 
upon him and fulfils his political duty. But good 
government is not a gratuity; for every citizen, high 
or low, owes something to the public subtracted 
from his private concerns and attention. Just as 
we see contemporary nations of Europe, with their 
vast standing armies, forcing able-bodied youth 
to give some years of his life to military service, 
so in our peace-loving Union opinion may well press 
conscripts or volunteers, as the case may be, into the 
public cause in early manhood, and teach men how 
to become, if not useful officials, at least useful 
voters. Public service, at all events, is not summed 
up in salaries and spoils, nor is true patriotism 
measured by a pension. Finally the true " Monroe 
doctrine " for the New World, as originally formu- 
lated by capable statesmen, was not for conquest 
but for self -conquest ; that we should set before the 
poor and suffering communities of this New World, 
less favored than ourselves, the shield and spectacle 
of a noble national example. 



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